50 CFR § 218.1-218.238 - Regulations governing the taking and importing of marine mammals

183 National Marine Fisheries Service/NOAA, Commerce Pt. 218 (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 217.217 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 217.216 for the activity identified in § 217.210(a) shall be re newed or modified upon request by the applicant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for these regula tions; and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and217.216 for the activity identified in § 217.210(a) may be modi fied by NMFS under the following cir cumstances: (1) HRCP may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with NMFS regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations; (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in a LOA: (A) Results from HRCP’s monitoring from previous years; (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs; (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §§ 216.106 of this chapter and217.216, a LOA may be modified without prior notice or oppor tunity for public comment. Notice would be published in the FEDERAL REGISTER within thirty days of the ac tion. §§ 217.218–217.219 [Reserved] Subpart X [Reserved] Subparts Z–[Reserved] PART 218—REGULATIONS GOV ERNING THE TAKING AND IM PORTING OF MARINE MAM MALS Subpart A—Taking and Importing Marine Mammals Incidental to U.S. Navy Con struction at Naval Station Norfolk in Norfolk, Virginia Sec. 218.1 Specified activity and geographical re gion. 218.2 Effective dates. 218.3 Permissible methods of taking. 218.4 Prohibitions. 218.5 Mitigation requirements. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00193 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 184 50 CFR Ch. II (10–1–22 Edition) Pt. 218 218.6 Requirements for monitoring and re porting. 218.7 Letters of Authorization. 218.8 Renewals and modifications of Letters of Authorization. 218.9 [Reserved] Subpart B—Taking and Importing Marine Mammals; U.S. Navy’s Point Mugu Sea Range (PMSR) Training and Testing Study Area 218.10 Specified activity and geographical region. 218.11 Effective dates. 218.12 Permissible methods of taking. 218.13 Prohibitions. 218.14 Mitigation requirements. 218.15 Requirements for monitoring and re porting. 218.16 Letters of Authorization. 218.17 Renewals and modifications of Let ters of Authorization. 218.18–218.19 [Reserved] Subpart C—Taking Marine Mammals Inci dental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington 218.20 Specified activity and specified geo graphical region. 218.21 Effective dates. 218.22 Permissible methods of taking. 218.23 Prohibitions. 218.24 Mitigation requirements. 218.25 Requirements for monitoring and re porting. 218.26 Letters of Authorization. 218.27 Renewals and modifications of Let ters of Authorization. 218.28–218.29 [Reserved] Subpart D—Taking Marine Mammals Inci dental to U.S. Navy Construction Ac tivities at Naval Weapons Station Seal Beach, California 218.30 Specified activity and specified geo graphical region. 218.31 Effective dates. 218.32 Permissible methods of taking. 218.33 Prohibitions. 218.34 Mitigation requirements. 218.35 Requirements for monitoring and re porting. 218.36 Letters of Authorization. 218.37 Renewals and modifications of Let ters of Authorization. 218.38–218.39 [Reserved] Subparts E–F [Reserved] Subpart G—Taking of Marine Mammals In cidental to Testing and Training Activi ties Conducted at the Eglin Gulf Test and Training Range in the Gulf of Mex ico 218.60 Specified activity and specified geo graphical region. 218.61 Effective dates. 218.62 Permissible methods of taking. 218.63 Prohibitions. 218.64 Mitigation requirements. 218.65 Requirements for monitoring and re porting. 218.66 Letters of Authorization. 218.67 Renewals and modifications of Let ters of Authorization. 218.68–218.69 [Reserved] Subpart H—Taking and Importing Marine Mammals; U.S. Navy’s Hawaii-Southern California Training and Testing (HSTT) 218.70 Specified activity and geographical region. 218.71 Effective dates. 218.72 Permissible methods of taking. 218.73 Prohibitions. 218.74 Mitigation requirements. 218.75 Requirements for monitoring and re porting. 218.76 Letters of Authorization. 218.77 Renewals and modifications of Let ters of Authorization. 218.78–218.79 [Reserved] Subpart I—Taking and Importing Marine Mammals; U.S. Navy’s Atlantic Fleet Training and Testing (AFTT) 218.80 Specified activity and specified geo graphical region. 218.81 Effective dates. 218.82 Permissible methods of taking. 218.83 Prohibitions. 218.84 Mitigation requirements. 218.85 Requirements for monitoring and re porting. 218.86 Letters of Authorization. 218.87 Renewals and modifications of Let ters of Authorization. 218.88–218.89 [Reserved] Subpart J—Taking and Importing Marine Mammals; U.S. Navy’s Mariana Islands Training and Testing (MITT) 218.90 Specified activity and geographical region. 218.91 Effective dates. 218.92 Permissible methods of taking. 218.93 Prohibitions. 218.94 Mitigation requirements. 218.95 Requirements for monitoring and re porting. 218.96 Letters of Authorization. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00194 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 185 National Marine Fisheries Service/NOAA, Commerce § 218.4 218.97 Renewals and modifications of Let ters of Authorization. Subparts K–N [Reserved] Subpart O—Taking and Importing Marine Mammals; U.S. Navy’s Northwest Train ing and Testing (NWTT) 218.140 Specified activity and geographical region. 218.141 Effective dates. 218.142 Permissible methods of taking. 218.143 Prohibitions. 218.144 Mitigation requirements. 218.145 Requirements for monitoring and re porting. 218.146 Letters of Authorization. 218.147 Renewals and modifications of Let ters of Authorization. 218.148 [Reserved] Subparts P–W [Reserved] Subpart X—Taking and Importing of Ma rine Mammals; U.S. Navy Surveillance Towed Array Sensor System Low Fre quency Active (SURTASS LFA) Sonar Training and Testing in the Central and Western North Pacific and Eastern In dian Oceans 218.230 Specified activity, level of taking, and species/stocks. 218.231 Effective dates. 218.232 Permissible methods of taking. 218.233 Prohibitions. 218.234 Mitigation. 218.235 Requirements for monitoring. 218.236 Requirements for reporting. 218.237 Letter of Authorization. 218.238 Renewals and modifications of a Let ter of Authorization. AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted. SOURCE: 74 FR 28343, June 15, 2009, unless otherwise noted. EFFECTIVE DATE NOTE: At 83 FR 5568, Feb. 8, 2018, the authority citation for part 218 was revised, effective Feb. 13, 2018, through Feb. 12, 2023. Subpart A—Taking and Importing Marine Mammals Incidental to U.S. Navy Construction at Naval Station Norfolk in Nor folk, Virginia SOURCE: 86 FR 24356, May 6, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 24356, May 6, 2021, subpart A was added, effective June 7, 2021, to June 7, 2026. § 218.1 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to con duct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs inci dental to construction activities in cluding marine structure maintenance, pile replacement, and select waterfront improvements at Naval Station (NAVSTA) Norfolk. (b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs at NAVSTA Norfolk and adja cent Navy facilities. § 218.2 Effective dates. Regulations in this subpart are effec tive from June 7, 2021 to June 7, 2026. § 218.3 Permissible methods of taking. Under an LOA issued pursuant to §§ 216.106 of this chapter and218.7, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.1(b) by Level B harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA. § 218.4 Prohibitions. (a) Except for the takings con templated in § 218.3 and authorized by a LOA issued under §§ 216.106 of this chapter and218.7, it is unlawful for any person to do any of the following in connection with the activities de scribed in § 218.1 may: (1) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under § 216.106 of this chapter and § 218.7; (2) Take any marine mammal not specified in such LOA; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00195 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 186 50 CFR Ch. II (10–1–22 Edition) § 218.5 (3) Take any marine mammal speci fied in such LOA in any manner other than as specified; (4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (5) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. (b) [Reserved] § 218.5 Mitigation requirements. (a) When conducting the activities identified in § 218.20(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.7 must be implemented. These mitiga tion measures shall include but are not limited to: (1) A copy of any issued LOA must be in the possession of the Navy, its des ignees, and work crew personnel oper ating under the authority of the issued LOA; (2) The Navy shall conduct briefings for construction supervisors and crews, the monitoring team, and Navy staff prior to the start of all pile driving ac tivity, and when new personnel join the work, in order to explain responsibil ities, communication procedures, the marine mammal monitoring protocol, and operational procedures; (3) For in-water heavy machinery work other than pile driving, if a ma rine mammal comes within 10 m, the Navy shall cease operations and reduce vessel speed to the minimum level re quired to maintain steerage and safe working conditions; (4) For all pile driving activity, the Navy shall implement a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (5) For all pile driving activity, the Navy shall implement shutdown zones with radial distances as identified in a LOA issued under §§ 216.106 of this chap ter and 218.7. If a marine mammal comes within or approaches the shut down zone, such operations shall cease; (6) The Navy shall deploy protected species observers (observers) as indi cated in its Marine Mammal Moni toring Plan approved by NMFS; (7) A minimum of three PSOs shall be stationed at the best vantage points practicable to monitor for marine mammals and implement shutdown/ delay procedures during vibratory pile driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs must be stationed at the best vantage points practicable during vibratory pile driv ing at Lambert’s Point. For all other pile driving activities, a minimum of two observers shall be stationed at the best vantage points practicable to monitor for marine mammals and im plement shutdown/delay procedures; (8) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activ ity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of ma rine mammals, and pile driving may commence when observers have de clared the shutdown zone clear of ma rine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to re main in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and docu mented. If a marine mammal is ob served within the shutdown zone, a soft-start cannot proceed until the ani mal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time re quired to drive a pile. If work ceases for more than 30 minutes, the pre-ac tivity monitoring of the shutdown zones must commence. A determina tion that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye); (9) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. If pile driving is halted or delayed due to the presence of a marine VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00196 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 187 National Marine Fisheries Service/NOAA, Commerce § 218.6 mammal, the activity may not com mence or resume until either the ani mal has voluntarily left and been vis ually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal; (10) Pile driving activity must be halted upon observation of either a spe cies for which incidental take is not authorized or a species for which inci dental take has been authorized but the authorized number of takes has been met, entering or within the har assment zone; (11) Should environmental conditions deteriorate such that marine mammals within the entire shutdown zone would not be visible (e.g., fog, heavy rain, night), the Navy shall delay pile driv ing and removal until observers are confident marine mammals within the shutdown zone could be detected; (12) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional ob server qualifications: (i) Independent observers are re quired; (ii) At least one observer must have prior experience working as an ob server; (iii) Other observers may substitute education (degree in biological science or related field) or training for experi ence; (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead ob server must have prior experience working as an observer; (v) Personnel who are engaged in con struction activities may not serve as observers. (13) The Navy shall use soft start techniques for impact pile driving. Soft start for impact drivers requires the Navy and those persons it authorizes or funds to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced energy three-strike sets. Soft start shall be implemented at the start of each day’s impact pile driv ing and at any time following cessation of impact pile driving for a period of thirty minutes or longer. (b) [Reserved] § 218.6 Requirements for monitoring and reporting. (a) The Navy shall submit a Marine Mammal Monitoring Plan to NMFS for approval in advance of construction. (b) The Navy shall deploy at least three PSOs during vibratory pile driv ing at Pier 3, Pier 12, and Craney Is land, and at least four PSOs during vi bratory pile driving at Lambert’s Point. For all other pile driving activi ties, the Navy shall deploy a minimum of two PSOs. (c) Observers shall be trained in ma rine mammal identification and behav iors. Observers shall have no other con struction-related tasks while con ducting monitoring. (d) For all pile driving activities, a minimum of two observers shall be sta tioned at the active pile driving site or in reasonable proximity in order to monitor the shutdown zone. (e) The Navy shall monitor the Level B harassment zones (areas where SPLs are equal to or exceed the 160 dB rms threshold for impact driving and the 120 dB rms threshold during vibratory pile driving) to the extent practicable and the shutdown zones. The Navy shall monitor at least a portion of the Level B harassment zone on all pile driving days. (f) The Navy shall submit a draft monitoring report to NMFS within 45 work days of the completion of re quired monitoring for each marine structure maintenance, pile replace ment, and upgrades project. The report must detail the monitoring protocol and summarize the data recorded dur ing monitoring. If no comments are re ceived from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS com ments must be submitted within 30 days after receipt of comments. Spe cifically, the report must include: (1) Dates and times (begin and end) of all marine mammal monitoring; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00197 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 188 50 CFR Ch. II (10–1–22 Edition) § 218.7 (2) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., impact or vibra tory); (3) Environmental conditions during monitoring periods (at beginning and end of observer shift and whenever con ditions change significantly), including Beaufort sea state and any other rel evant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance (if less than the harassment zone distance); (4) The number of marine mammals observed, by species, relative to the pile location and if pile driving or re moval was occurring at time of sight ing; (5) Age and sex class, if possible, of all marine mammals observed; (6) Observer locations during marine mammal monitoring; (7) Distances and bearings of each marine mammal observed to the pile being driven or removed for each sight ing (if pile driving or removal was oc curring at time of sighting); (8) Description of any marine mam mal behavior patterns during observa tion, including direction of travel and estimated time spent within the Level A and Level B harassment zones while the source was active; (9) Number of marine mammals de tected within the harassment zones, by species; (10) Detailed information about any implementation of any mitigation trig gered (e.g., shutdowns and delays), a description of specific actions that en sued, and resulting behavior of the ani mal, if any; (11) Description of attempts to distin guish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and (12) Estimated percentage of the Level B harassment zone that was not visible. (g) In the event that personnel in volved in the construction activities discover an injured or dead marine mammal, the Navy shall report the in cident to the Office of Protected Re sources (OPR) (301–427–8401), NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Strand ing Coordinator as soon as feasible. If the death or injury was clearly caused by the specified activity, the Navy must immediately cease the specified activities until NMFS is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the au thorization. The Navy must not resume their activities until notified by NMFS. (1) The report must include the fol lowing information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (2) [Reserved] § 218.7 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the Navy must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, the Navy may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and ob tain a modification of the LOA as de scribed in § 218.8. (e) The LOA shall set forth the fol lowing information: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00198 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 189 National Marine Fisheries Service/NOAA, Commerce § 218.10 on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 218.8 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.7 for the activity identified in § 218.1(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations, and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 218.7 for the activity identified in § 218.1(a) may be modified by NMFS under the following cir cumstances: (1) NMFS may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with Navy regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in a LOA: (A) Results from Navy’s monitoring from previous years; (B) Results from other marine mam mal and/or sound research or studies; (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs; and (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to § 216.106 of this chapter and § 218.7, a LOA may be modified without prior notice or oppor tunity for public comment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. § 218.9 [Reserved] Subpart B—Taking and Importing Marine Mammals; U.S. Navy’s Point Mugu Sea Range (PMSR) Training and Testing Study Area SOURCE: 87 FR 40960, July 8, 2022, unless otherwise noted. EFFECTIVE DATE NOTE: 87 FR 40960, July 8, 2022, subpart B was added, effective July 7, 2022, through July 7, 2029. § 218.10 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) for the taking of marine mammals that occur in the area described in paragraph (b) of this section and that occur inci dental to the activities listed in para graph (c) of this section. (b) The taking of marine mammals by the Navy under this subpart may be authorized in a Letter of Authorization (LOA) only if it occurs within the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00199 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 190 50 CFR Ch. II (10–1–22 Edition) § 218.11 PMSR Training and Testing Study Area. The PMSR Study Area is located adjacent to Los Angeles, Ventura, Santa Barbara, and San Luis Obispo Counties along the Pacific Coast of Southern California and includes a 36,000-square-mile sea range. The two primary components of the PMSR Complex are Special Use Airspace and the ocean Operating Areas. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy conducting training and testing activities, includ ing: (1) Training. (i) Air warfare; (ii) Electronic warfare; and (iii) Surface warfare. (2) Testing. (i) Air warfare; (ii) Electronic warfare; and (iii) Surface warfare. § 218.11 Effective dates. Regulations in this subpart are effec tive from July 7, 2022, through July 7, 2029. § 218.12 Permissible methods of tak ing. (a) Under an LOA issued pursuant to §§ 216.106 of this subchapter and 218.16, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.10(b) by Level A harassment and Level B harassment associated with the use of explosives and missile launch activi ties, provided the activity is in compli ance with all terms, conditions, and re quirements of the regulations in this subpart and the applicable LOA. (b) The incidental take of marine mammals by the activities listed in § 218.10(c) is limited to the species and stocks listed in Table 1 of this section. TABLE 1 TO § 218.12(b) Common name Scientific name Stock Blue whale ................................................ Balaenoptera musculus ........................... Eastern North Pacific. Fin whale .................................................. Balaenoptera physalus ............................ California, Oregon, and Washington. Gray whale ............................................... Eschrichtius robustus ............................... Eastern North Pacific. Humpback whale ...................................... Megaptera novaeangliae ......................... California, Oregon, Washington. Minke whale ............................................. Balaenoptera acutorostrata ...................... California, Oregon, and Washington. Common Bottlenose dolphin .................... Tursiops truncatus ................................... California, Oregon, and Washington Off shore. Dall’s porpoise .......................................... Phocoenoides dalli ................................... California, Oregon, and Washington. Dwarf sperm whale .................................. Kogia sima ............................................... California, Oregon, and Washington. Long-beaked common dolphin ................. Delphinus capensis .................................. California. Mesoplodont beaked whales .................... Mesoplodon spp ....................................... California, Oregon, and Washington. Northern right whale dolphin .................... Lissodelphis borealis ................................ California, Oregon, and Washington. Pacific white-sided dolphin ....................... Lagenorhynchus obliquidens ................... California, Oregon, and Washington. Pygmy killer whale ................................... Feresa attenuata. Pygmy sperm whale ................................. Kogia breviceps ....................................... California, Oregon, and Washington. Risso’s dolphins ....................................... Grampus griseus ...................................... California, Oregon, and Washington. Short-beaked common dolphin ................ Delphinus delphis ..................................... California, Oregon, and Washington. Sperm whale ............................................ Physeter macrocephalus ......................... California, Oregon, and Washington. Striped dolphin ......................................... Stenella coeruleoalba .............................. California, Oregon, and Washington. Harbor seal ............................................... Phoca vitulina ........................................... California. Northern elephant seal ............................. Mirounga angustirostris ............................ California. California sea lion .................................... Zalophus californianus ............................. U.S. Stock. Guadalupe fur seal ................................... Arctocephalus townsendi ......................... Mexico to California. § 218.13 Prohibitions. Except for incidental takings con templated in § 218.12(a) and authorized by an LOA issued under §§ 216.106 of this chapter and 218.16, it shall be unlawful for any person to do any of the fol lowing in connection with the activi ties listed in § 218.10(c): (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.16; (b) Take any marine mammal not specified in § 218.12(b); (c) Take any marine mammal speci fied in § 218.12(b) in any manner other than as specified in the LOA issued under §§ 216.106 of this chapter and 218.16; or VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00200 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 191 National Marine Fisheries Service/NOAA, Commerce § 218.14 (d) Take a marine mammal specified in § 218.12(b) if NMFS determines such taking is having, or may have, more than a negligible impact on the species or stock concerned. § 218.14 Mitigation requirements. When conducting the activities iden tified in § 218.10(c), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.16 will be implemented. These miti gation measures include, but are not limited to: (a) Procedural mitigation. Procedural mitigation is mitigation that the Navy will implement whenever and wherever an applicable training or testing activ ity takes place within the PMSR Study Area for each applicable activity cat egory or stressor category and includes acoustic stressors (i.e., weapons firing noise), explosive stressors (i.e., me dium-caliber and large-caliber projec tiles, missiles and rockets, bombs), and physical disturbance and strike stressors (i.e., vessel movement; towed in-water devices (e.g., surface targets); small-, medium-, and large-caliber non explosive practice munitions; non-ex plosive missiles and rockets; and non explosive bombs). (1) Environmental awareness and edu cation. Navy personnel (including civil ian personnel) involved in mitigation and training or testing reporting under the specified activities will complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identified in their career path training plan. Modules in clude: Introduction to the U.S. Navy Afloat Environmental Compliance Training Series, Marine Species Aware ness Training, and U.S. Navy Protec tive Measures Assessment Protocol. (2) Weapons firing noise. Weapons fir ing noise associated with large-caliber gunnery activities. (i) Number of Lookouts and observation platform. One Lookout will be posi tioned on the ship conducting the fir ing. Depending on the activity, the Lookout could be the same as the one provided for under paragraph (a)(7)(i) of this section. (ii) Mitigation zone and requirements. The mitigation zone will be 30 degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired. (A) Prior to the initial start of the activ ity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vege tation or marine mammals are ob served, Navy personnel will relocate or delay the start of weapons firing. (B) During the activity. Navy per sonnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will cease weapons firing. (C) Commencement/recommencement conditions after a marine mammal sight ing before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing weap ons firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on its course, speed, and movement away from weap ons firing noise; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 minutes (min); or (4) Firing ship transit. For mobile ac tivities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the loca tion of the last sighting. (3) Explosive medium-caliber and large caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation ap plies to activities using a surface tar get. (i) Number of Lookouts and observation platform. One Lookout will be on the vessel or aircraft conducting the activ ity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in paragraph (a)(2)(i) of this section. If additional platforms are participating in the ac tivity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) will support observing the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00201 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 192 50 CFR Ch. II (10–1–22 Edition) § 218.14 relevant mitigation zone for marine mammals and other applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. The relevant mitigation zones are as follows: 200 yd (182.88 m) around the in tended impact location for air-to-sur face activities using explosive medium caliber projectiles; 600 yd (548.64 m) around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles; and 1,000 yd (914.4 m) around the in tended impact location for surface-to surface activities using explosive large caliber projectiles. (A) Prior to the initial start of the activ ity (e.g., when maneuvering on station). Navy personnel will observe the miti gation zone for floating vegetation and marine mammals; if floating vegeta tion or marine mammals are observed, Navy personnel will relocate or delay the start of firing. (B) During the activity. Navy per sonnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will cease firing. (C) Commencement/recommencement conditions after a marine mammal sight ing before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on a its course, speed, and movement away from the intended impact location; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for ves sel-based firing; or (4) Impact location transit. For activi ties using mobile targets, the intended impact location has transited a dis tance equal to double that of the miti gation zone size beyond the location of the last sighting. (D) After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual ob servation of the area where detona tions occurred. (4) Explosive missiles and rockets. Air craft-deployed explosive missiles and rockets. Mitigation applies to activi ties using a maritime surface target at ranges up to 75 nmi (139 km). (i) Number of Lookouts and observation platform. One Lookout will be posi tioned in an aircraft. If additional plat forms are participating in the activity, Navy personnel positioned on those as sets (e.g., safety observers, evaluators) will support observing the relevant mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. The relevant mitigation zones are as follows: 900 yd (822.96 m) around the in tended impact location for missiles or rockets with 0.6–20 lb net explosive weight; and 2,000 yd (1,828.8 m) around the intended impact location for mis siles with 21–500 lb net explosive weight. (A) Prior to the initial start of the activ ity (e.g., during a fly-over of the mitiga tion zone). Navy personnel will observe the mitigation zone for floating vege tation and marine mammals; if float ing vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing. (B) During the activity. Navy per sonnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will cease firing. (C) Commencement/recommencement conditions after a marine mammal sight ing before or during the activity. Navy VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00202 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 193 National Marine Fisheries Service/NOAA, Commerce § 218.14 personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (D) After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual ob servation of the area where detona tions occurred. (5) Explosive bombs. Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km). (i) Number of Lookouts and observation platform. One Lookout will be posi tioned in an aircraft conducting the ac tivity. If additional platforms are par ticipating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) will sup port observing the relevant mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. The relevant mitigation zones is 2,500 yd (2,286 m) around the intended tar get. (A) Prior to the initial start of the activ ity (e.g., when arriving on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will relocate or delay the start of bomb deployment. (B) During the activity (e.g., during tar get approach). Navy personnel will ob serve the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mam mals are observed, Navy personnel will cease bomb deployment. (C) Commencement/recommencement conditions after a marine mammal sight ing before or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended target; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or (4) Intended target transit. For activi ties using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (D) After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual ob servation of the area where detona tions occurred. (6) Vessel movement. The mitigation will not be required if: the vessel’s safe ty is threatened; the vessel is re stricted in its ability to maneuver (e.g., VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00203 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 194 50 CFR Ch. II (10–1–22 Edition) § 218.14 during launching and recovery of air craft or landing craft, during towing activities, when mooring); the vessel is submerged or operated autonomously; or if impracticable based on mission re quirements (e.g., during Amphibious Assault and Amphibious Raid exer cises). (i) Number of Lookouts and observation platform. One Lookout will be on the vessel that is underway. (ii) Mitigation zone and requirements. The relevant mitigation zones are as follows: 500 yd (457.2 m) around whales; and 200 yd (182.88 m) around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels). (A) During the activity. When under way Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will maneuver to maintain distance. (B) [Reserved] (iii) Reporting. If a marine mammal vessel strike occurs, Navy personnel will follow the established incident re porting procedures. (7) Small-, medium-, and large-caliber non-explosive practice munitions. Mitiga tion applies to activities using a sur face target. (i) Number of Lookouts and observation platform. One Lookout will be posi tioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described in paragraph (a)(2)(i) of this section. (ii) Mitigation zone and requirements. The relevant mitigation zone is 200 yd (182.88 m) around the intended impact location. (A) Prior to the initial start of the activ ity (e.g., when maneuvering on station). Navy personnel will observe the miti gation zone for floating vegetation and marine mammals; if floating vegeta tion or marine mammals are observed, Navy personnel will relocate or delay the start of firing. (B) During the activity. Navy per sonnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will cease firing. (C) Commencement/recommencement conditions after a marine mammal sight ing before or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location; (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for ves sel-based firing; (4) Impact location transit. For activi ties using a mobile target, the intended impact location has transited a dis tance equal to double that of the miti gation zone size beyond the location of the last sighting. (8) Non-explosive missiles and rockets. Aircraft-deployed non-explosive mis siles and rockets. Mitigation applies to activities using a maritime surface tar get at ranges of up to 75 nmi (139 km). (i) Number of Lookouts and observation platform. One Lookout will be posi tioned in an aircraft. (ii) Mitigation zone and requirements. The relevant mitigation zone is 900 yd (822.96 m) around the intended impact location. (A) Prior to the initial start of the activ ity (e.g., during a fly-over of the mitiga tion zone). Navy personnel will observe the mitigation zone for floating vege tation and marine mammals; if float ing vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing. (B) During the activity. Navy per sonnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will cease firing. (C) Commencement/recommencement conditions after a marine mammal sight ing prior to or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00204 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 195 National Marine Fisheries Service/NOAA, Commerce § 218.14 prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location; or (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (9) Non-explosive bombs. Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km). (i) Number of Lookouts and observation platform. One Lookout will be posi tioned in an aircraft. (ii) Mitigation zone and requirements. The relevant mitigation zone is 900 yd (822.96 m) around the intended target. (A) Prior to the initial start of the activ ity (e.g., when arriving on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel will relocate or delay the start of bomb deployment. (B) During the activity (e.g., during ap proach of the target or intended minefield location). Navy personnel will observe the mitigation zone for floating vege tation and marine mammals and, if floating vegetation or marine mam mals are observed, Navy personnel will cease bomb deployment. (C) Commencement/recommencement conditions after a marine mammal sight ing prior to or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Determined to have exited. The ani mal is determined to have exited the mitigation zone based its course, speed, and movement away from the intended target or minefield location; (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or (4) Intended target transit. For activi ties using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (10) Target and missile launches from San Nicolas Islands (SNI). Target and missile launch activities from SNI. (i) Mitigation zone and requirements. 305 m (1,000 ft) over pinniped haulouts. Missiles will not cross over pinniped haulouts at elevations less than 305 m (1,000 ft) above the haulout. All manned aircraft and helicopter flight paths will maintain a minimum distance of 305 m (1,000 ft) from recognized seal haulouts and rookeries, except in emergencies or for real-time security incidents. For unmanned aircraft systems (UAS), the following minimum altitudes will be maintained over pinniped haulout areas and rookeries: Class 0–2 UAS will maintain a minimum altitude of 300 ft; Class 3 UAS will maintain a minimum altitude of 500 ft; Class 4 or 5 UAS will not be flown below 1,000 ft. (A) Pinniped haulouts. Navy personnel will not enter pinniped haulouts or rookeries. Personnel may be adjacent to pinniped haulouts and rookeries prior to and following a launch for monitoring purposes. (B) Number of launch events. Navy will not conduct more than 40 launch events annually. Up to 10 launch events of the 40 annual launch events may occur at night. (C) Launches during the peak pinniped pupping season. Launches will be sched uled to avoid peak pinniped pupping periods between January and July, to the maximum extent practicable. (D) Unauthorized species. If a species for which authorization has not been granted is taken, or a species for which authorization has been granted but the authorized takes are met, the Navy will consult with NMFS to determine how to proceed. (E) Review of launch procedures. The Navy will review the launch procedure VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00205 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 196 50 CFR Ch. II (10–1–22 Edition) § 218.15 and monitoring methods, in coopera tion with NMFS, if any incidents of in jury or mortality of a pinniped are dis covered during post-launch surveys, or if surveys indicate possible effects to the distribution, size, or productivity of the affected pinniped populations as a result of the specified activities. If necessary, appropriate changes will be made through modification to the LOA prior to conducting the next launch of the same vehicle. (ii) [Reserved] (b) Seasonal awareness messages. In ad dition to procedural mitigation, Navy personnel will implement seasonal awareness notification messages throughout the PMSR Study Area to avoid interaction with large whales during transit. (1) Blue whale awareness notification message. (i) Navy personnel will issue a seasonal awareness notification mes sage to alert Navy ships and aircraft operating throughout the PMSR Study Area to the possible presence of in creased concentrations of blue whales June 1 through October 31. (ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of blue whales that, when concentrated seasonally, may be come vulnerable to vessel strikes. (iii) Navy personnel will use the in formation from the awareness notifica tion message to assist their visual ob servation of applicable mitigation zones during training and testing ac tivities and to aid in the implementa tion of procedural mitigation. (2) Gray whale awareness notification message. (i) Navy personnel will issue a seasonal awareness notification mes sage to alert Navy ships and aircraft operating through the PMSR Study Area to the possible presence of in creased concentrations of gray whales November 1 through March 31. (ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of gray whales that, when concentrated seasonally, may be come vulnerable to vessel strikes. (iii) Navy personnel will use the in formation from the awareness notifica tion message to assist their visual ob servation of applicable mitigation zones during training and testing ac tivities and to aid in the implementa tion of procedural mitigation. (3) Fin whale awareness notification message. (i) Navy personnel will issue a seasonal awareness notification mes sage to alert Navy ships and aircraft operating throughout the PMSR Study Area to the possible presence of in creased concentrations of fin whales November 1 through May 31. (ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of fin whales that, when concentrated seasonally, may be come vulnerable to vessel strikes. (iii) Navy personnel will use the in formation from the awareness notifica tion message to assist their visual ob servation of applicable mitigation zones during training and testing ac tivities and to aid in the implementa tion of procedural mitigation. § 218.15 Requirements for monitoring and reporting. (a) Unauthorized take. Navy personnel will notify NMFS immediately (or as soon as operational security consider ations allow) if the specified activity identified in § 218.10 is thought to have resulted in the serious injury or mor tality of any marine mammals, or in any Level A harassment or Level B harassment of marine mammals not identified in this subpart. (b) Monitoring and reporting under the LOA. The Navy will conduct all moni toring and reporting required under the LOA. The Navy will coordinate and dis cuss with NMFS how monitoring in the PMSR Study Area could contribute to the Navy’s Marine Species Monitoring Program. (c) Notification of injured, live strand ed, or dead marine mammals. Navy per sonnel will consult the Notification and Reporting Plan, which sets out no tification, reporting, and other require ments when dead, injured, or live stranded marine mammals are de tected. The Notification and Reporting Plan is available at https:// www.fisheries.noaa.gov/action/incidental VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00206 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 197 National Marine Fisheries Service/NOAA, Commerce § 218.15 take-authorization-us-navy-testing-and training-activities-point-mugu-sea-range. (d) Pinniped monitoring plan on SNI. In consultation with NMFS, the Navy will implement a monitoring plan for beaches exposed to missile launch noise with the goal of assessing base line pinniped distribution/abundance and potential changes in pinniped use of these beaches after launch events. Marine mammal monitoring shall in clude multiple surveys (e.g., time-lapse photography) during the year that record the species, number of animals, general behavior, presence of pups, age class, gender and reactions to launch noise or other natural or human caused disturbances, in addition to environ mental conditions that may include tide, wind speed, air temperature, and swell. In addition, video and acoustic monitoring of up to three pinniped haulout areas and rookeries will be conducted during launch events that include missiles or targets that have not been previously monitored using video and acoustic recorders for at least three launch events. Video moni toring cameras would be either high definition video cameras, or Forward Looking Infrared Radiometer (FLIR) thermal imaging cameras for night launch events. (e) Annual pinniped monitoring report on SNI. The Navy will submit an an nual report to NMFS of the SNI rocket and missile launch activities. The draft annual monitoring report will be sub mitted to the Director, Office of Pro tected Resources, NMFS, within 3 months after the end of the reporting year. NMFS will submit comments or questions on the draft monitoring re port, if any, within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS’ comments, or 3 months after the sub mission of the draft if NMFS does not provide comments on the draft report. The report will summarize the launch events conducted during the year; as sess any direct impacts to pinnipeds from launch events; assess any cumu lative impacts on pinnipeds from launch events; and, summarize pinniped monitoring and research ac tivities conducted on SNI and any find ings related to effects of launch noise on pinniped populations. (f) Annual PMSR Study Area Training and Testing Activity Report. Each year, the Navy will submit a detailed report PMSR (Annual Training and Testing Activity Report) to the Director, Office of Protected Resources, NMFS, within 3 months after the one-year anniver sary of the date of issuance of the LOA. NMFS will submit comments or ques tions on the report, if any, within 1 month of receipt. The report will be considered final after the Navy has ad dressed NMFS’ comments, or 1 month after submission of the draft if NMFS does not provide comments on the draft report. The annual report will contain information on all sound sources used (total hours or quantity of each bin; total annual number of each type of explosive events; and total an nual expended/detonated rounds (mis siles, bombs, etc.) for each explosive bin). The annual report will also con tain both the current year’s data as well as explosive use quantity from previous years’ reports. Additionally, if there were any changes to the explo sive allowance in a given year, or cu mulatively, the report will include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the 2022 PMSR Final Envi ronment Impact Statement/Overseas Environmental Impact Statement (‘‘FEIS/OEIS’’; available at https://pmsr eis.com/) and the analysis in the Marine Mammal Protection Act (MMPA) final rule (87 FR [INSERT FR PAGE NUM BER], July 8, 2022). The annual report will also include the details regarding specific requirements associated with monitoring on SNI. The final annual/ close-out report at the conclusion of the authorization period (year 7) will serve as the comprehensive close-out report and include both the final year annual use compared to annual author ization as well as a cumulative 7-year annual use compared to 7-year author ization. The detailed reports will con tain the information identified in para graphs (f)(1) and (2) of this section. (1) Explosives. This section of the re port will include the following infor mation for explosive activities com pleted that year. (i) Activity information gathered for each explosive event. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00207 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 198 50 CFR Ch. II (10–1–22 Edition) § 218.16 (A) Location by Special Use Airspace (e.g., Warning Area). (B) Date and time exercise began and ended. (C) Total hours of observation by Lookouts before, during, and after ex ercise. (D) Total annual expended/detonated ordnance (i.e., missile, bombs etc.) num ber and types of explosive source bins detonated. (E) Wave height in feet (high, low, and average) during exercise. (F) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illus trating how marine mammal detection was conducted. (ii) Individual marine mammal obser vation (by Navy Lookouts) information for each sighting where mitigation was implemented. (A) Date/time/location of sighting. (B) Species (if not possible, indicate whale or dolphin). (C) Number of individuals. (D) Initial detection sensor (e.g., sonar or Lookout). (E) Length of time observers main tained visual contact with marine mammal. (F) Sea state. (G) Visibility. (H) Whether sighting was before, dur ing, or after detonations/exercise, and how many minutes before or after. (I) Distance of marine mammal from actual detonations (or target spot if not yet detonated): Less than 200 yd (183 m), 200 to 500 yd (183 m to 457 m), 500 to 1,000 yd (457 m to 914 m), 1,000 to 2,000 yd (914 m to 1,829 m), or greater than 2,000 yd (1,829 m). (J) Lookouts will report, in plain lan guage and without trying to categorize in any way, the observed behavior of the animal(s) (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming etc.), including speed and direction and if any calves were present. (K) The report will indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long. (L) If observation occurred while ex plosives were detonating in the water, indicate munition type in use at time of marine mammal detection. (2) Summary of sources used. This sec tion of the report will include the fol lowing information summarized from the authorized sound sources used in all training and testing events: (i) Total annual quantity (per the LOA) of each explosive bin; and (ii) Total annual expended/detonated ordnance (missiles, bombs, etc.) for each explosive bin. (g) Final close-out report. The final (year 7) draft annual/close-out report will be submitted within 3 months after the expiration of this subpart to the Director, Office of Protected Re sources, NMFS. NMFS will submit comments on the draft close-out re port, if any, within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS’ comments, or 3 months after the sub mittal of the draft if NMFS does not provide comments. § 218.16 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy will apply for and obtain an LOA in accordance with § 216.106 of this chapter. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed between October 31, 2021, and October 30, 2028. (c) If an LOA expires prior to October 30, 2028, the Navy may apply for and ob tain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision of § 218.17(c)(1)) re quired by an LOA issued under this subpart, the Navy will apply for and obtain a modification of the LOA as de scribed in § 218.17. (e) Each LOA will set forth: (1) Permissible methods of incidental taking; (2) Geographic areas for incidental taking; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species or stocks of marine mammals and their habitat; and (4) Requirements for monitoring and reporting. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00208 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 199 National Marine Fisheries Service/NOAA, Commerce § 218.20 (f) Issuance of the LOA(s) will be based on a determination that the level of taking is consistent with the find ings made for the total taking allow able under the regulations in this sub part. (g) Notice of issuance or denial of the LOA(s) will be published in the FED ERAL REGISTER within 30 days of a de termination. § 218.17 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.16 for the activity identified in § 218.10(c) may be renewed or modified upon request by the appli cant, provided that: (1) The specified activity and mitiga tion, monitoring, and reporting meas ures, as well as the anticipated im pacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pur suant to the adaptive management pro vision in paragraph (c)(1) of this sec tion); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart or re sult in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.16 may be modified by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s annual monitoring report and annual exercise report from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; (C) Results from specific stranding investigations; or (D) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of a new LOA in the FEDERAL REG ISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.16, an LOA may be modified without prior notice or oppor tunity for public comment. Notice will be published in the FEDERAL REGISTER within 30 days of the action. §§ 218.18–218.19 [Reserved] Subpart C—Taking Marine Mam mals Incidental to U.S. Navy Marine Structure Maintenance and Pile Replacement in Washington SOURCE: 84 FR 15983, Apr. 17, 2019, unless otherwise noted. EFFECTIVE DATE NOTE: At 84 FR 15983, Apr. 17, 2019, subpart C was added, effective May 17, 2019, through May 17, 2024. § 218.20 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to con duct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00209 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 200 50 CFR Ch. II (10–1–22 Edition) § 218.21 of this section and that occurs inci dental to maintenance construction ac tivities, as defined in a Letter of Au thorization (LOA). (b) The taking of marine mammals by the Navy may be authorized in a LOA only if it occurs within Wash ington inland waters in the vicinity of one of the following six naval installa tions: Naval Base Kitsap Bangor, Zelatched Point, Naval Base Kitsap Bremerton, Naval Base Kitsap Keyport, Naval Base Kitsap Manchester, and Naval Station Everett. § 218.21 Effective dates. Regulations in this subpart are effec tive from May 17, 2019 through May 17, 2024. § 218.22 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.26, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.20(b) by Level A or Level B harassment asso ciated with maintenance construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 218.23 Prohibitions. Notwithstanding takings con templated in § 218.22 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.26, no person in connec tion with the activities described in § 218.20 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 218.26; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 218.24 Mitigation requirements. When conducting the activities iden tified in § 218.20(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.26 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) A copy of any issued LOA must be in the posses sion of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA; and (2) The Navy shall conduct briefings for construction supervisors and crews, the monitoring team, and Navy staff prior to the start of all pile driving ac tivity, and when new personnel join the work, in order to explain responsibil ities, communication procedures, the marine mammal monitoring protocol, and operational procedures. (b) Shutdown zones. (1) For all pile driving activity, the Navy shall imple ment a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease; (2) For all pile driving activity, the Navy shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.26. If a marine mammal comes within or approaches the shut down zone, such operations shall cease; (3) For all pile driving activity, the Navy shall designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.26. Anticipated observ able zones within the designated moni toring zones shall be identified in an nual Marine Mammal Monitoring Plans, subject to approval by NMFS. If any cetacean is observed outside the shutdown zone identified pursuant to paragraphs (b)(1) and (2) of this section, but within the designated monitoring zone, such operations shall cease. (c) Shutdown protocols. (1) The Navy shall deploy marine mammal observers as indicated in annual Marine Mammal VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00210 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 201 National Marine Fisheries Service/NOAA, Commerce § 218.24 Monitoring Plans, which shall be sub ject to approval by NMFS, and as de scribed in § 218.25. (2) For all pile driving activities, a minimum of one observer shall be sta tioned at the active pile driving rig or in reasonable proximity in order to monitor the shutdown zone. (3) Prior to the start of pile driving on any day, the Navy shall take meas ures to ensure that southern resident killer whales are not located within the vicinity of the project area, includ ing, but not limited to, contacting and/ or reviewing the latest sightings data from the Orca Network and/or Center for Whale Research, including passive acoustic detections, to determine the location of the nearest marine mam mal sightings. (4) Monitoring shall take place from fifteen minutes prior to initiation of pile driving activity through thirty minutes post-completion of pile driving activity. Pre-activity monitoring shall be conducted for fifteen minutes to en sure that the shutdown zone is clear of marine mammals, and pile driving may commence only if observers have de clared the shutdown zone clear of ma rine mammals during this period. In the event of a delay or shutdown of ac tivity resulting from marine mammals in the shutdown zone, the marine mammals shall be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive a pile. A deter mination that the shutdown zone is clear cannot be made unless the ob server(s) have good visibility of the shutdown zone during the entire fif teen-minute observation period (i.e., the entire shutdown zone must be visi ble to the naked eye and unobscured by dark, rain, fog, poor lighting condi tions, etc.). (5) If a marine mammal approaches or enters the shutdown zone, the Navy shall halt all pile driving activities at that location. If pile driving is halted or delayed due to the presence of a ma rine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shut down zone or fifteen minutes have passed without re-detection of the ani mal. (6) If a species for which authoriza tion has not been granted, or a species for which authorization has been granted but the authorized takes are met, is observed approaching or within the monitoring zone, the Navy must halt pile driving activities imme diately using delay and shutdown pro cedures. Activities must not resume until the animal has been confirmed to have left the area or the fifteen-minute observation period has elapsed. (7) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional ob server qualifications: (i) Independent observers (i.e., not construction personnel) are required. (ii) At least one observer must have prior experience working as an ob server. (iii) Other observers may substitute education (degree in biological science or related field) or training for experi ence. (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead ob server must have prior experience working as an observer. (d) Soft start. The Navy shall use soft start techniques for impact pile driv ing. Soft start for impact drivers re quires contractors to provide an initial set of three strikes at reduced energy, followed by a thirty-second waiting pe riod, then two subsequent reduced en ergy three-strike sets. Soft start shall be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer. (e) Sound attenuation. The Navy shall employ a bubble curtain (or other sound attenuation device with proven VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00211 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 202 50 CFR Ch. II (10–1–22 Edition) § 218.25 typical performance of at least 8 deci bels effective attenuation) during im pact pile driving of steel piles greater than 14 inches diameter in water depths greater than 2 feet, except at Naval Base Kitsap Bremerton and Naval Base Kitsap Keyport. The Navy shall assess the potential for the use of bubble curtains at Keyport on a project-by-project basis. In addition, the Navy shall implement the fol lowing performance standards: (1) The bubble curtain must dis tribute air bubbles around 100 percent of the piling perimeter for the full depth of the water column. (2) The lowest bubble ring shall be in contact with the mudline for the full circumference of the ring, and the weights attached to the bottom ring shall ensure 100 percent mudline con tact. No parts of the ring or other ob jects shall prevent full mudline con tact. (3) The Navy shall require that con struction contractors train personnel in the proper balancing of air flow to the bubblers, and shall require that construction contractors submit an in spection/performance report for ap proval by the Navy within 72 hours fol lowing the performance test. Correc tions to the attenuation device to meet the performance standards shall occur prior to impact driving. § 218.25 Requirements for monitoring and reporting. (a) Not later than March 1 of each year, the Navy shall develop and sub mit for NMFS’s approval an installa tion-specific Marine Mammal Moni toring Plan for each year’s anticipated work. Final monitoring plans shall be prepared and submitted to NMFS with in 30 days following receipt of com ments on the draft plans from NMFS. (b) During each in-water work period, the Navy shall update NMFS every two months on the progress of ongoing projects. (c) Trained observers shall receive a general environmental awareness brief ing conducted by Navy staff. At a min imum, training shall include identi fication of the marine mammals that may occur in the project vicinity and relevant mitigation and monitoring re quirements. All observers shall have no other construction-related tasks while conducting monitoring. (d) For shutdown zone monitoring, the Navy shall report on implementa tion of shutdown or delay procedures, including whether the procedures were not implemented and why (when rel evant). (e) The Navy shall deploy additional observers to monitor disturbance zones according to the minimum require ments defined in annual Marine Mam mal Monitoring Plans, subject to ap proval by NMFS. These observers shall collect sighting data and behavioral re sponses to pile driving for marine mammal species observed in the region of activity during the period of activ ity, and shall communicate with the shutdown zone observer as appropriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behaviors. (f) The Navy must conduct hydroacoustic monitoring for a subset of impact-driven steel piles for projects that include more than three such piles. When this requirement for moni toring of impact-driven steel piles is triggered, the Navy must also conduct hydroacoustic monitoring of a subset of impact-driven plastic piles (if appli cable). (g) The Navy must submit annual summary, final, and comprehensive summary reports as described in this paragraph (g): (1) Navy shall submit an annual sum mary report to NMFS not later than 90 days following the end of construction for that year. Navy shall provide a final report within 30 days following resolution of comments on the draft re port. These reports shall contain, at minimum, the following: (i) Date and time that monitored ac tivity begins or ends; (ii) Construction activities occurring during each observation period; (iii) Weather parameters (e.g., wind speed, percent cloud cover, visibility); (iv) Water conditions (e.g., sea state, tide state); (v) Species, numbers, and, if possible, sex and age class of marine mammals; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00212 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 203 National Marine Fisheries Service/NOAA, Commerce § 218.25 (vi) Description of any observable marine mammal behavior patterns, in cluding bearing and direction of travel and distance from pile driving activity; (vii) Distance from pile driving ac tivities to marine mammals and dis tance from the marine mammals to the observation point; (viii) Description of implementation of mitigation measures (e.g., shutdown or delay); (ix) Locations of all marine mammal observations; and (x) Other human activity in the area. (2) Navy shall submit a comprehen sive summary report to NMFS not later than ninety days following the conclusion of marine mammal moni toring efforts described in this subpart. (h) The Navy must submit reports of stranded, injured, or dead marine mam mals as described in this paragraph (h): (1) In the event that a live marine mammal is found stranded, whether on shore or in or on any structure or ves sel, the following steps shall be taken: (i) Project personnel who discover the marine mammal shall immediately notify the most appropriate onsite per sonnel with relevant expertise (e.g., marine mammal observers) as well as the Navy (if non-Navy project per sonnel initially discover the animal). (ii) The Navy shall then immediately notify the West Coast Regional Strand ing Coordinator, NMFS, and, in con sultation with the Stranding Coordi nator, shall immediately notify the most appropriate qualified individual (i.e., biologist or veterinarian) to re spond to the event. (iii) In the interim, or in the event that no qualified individual other than onsite marine mammal observers is available to respond to the event, the Navy shall manage the event response and shall take action to prevent any further deterioration of the animal’s condition, to the extent possible. Ap propriate action may be specific to the event. At minimum, the Navy should provide shade for the animal (if pos sible), shall not move the animal or cause the animal to move, and shall suspend project activity until the situ ation is resolved. (iv) The Navy shall report the inci dent to the Office of Protected Re sources (OPR), NMFS, within 48 hours after discovery. (2) In the unanticipated event that the activity defined in § 218.20 clearly causes the take of at least one marine mammal in a prohibited manner, the Navy shall immediately cease such ac tivity and report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. Activities shall not resume until NMFS is able to re view the circumstances of the prohib ited take. NMFS will work with the Navy to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility); (iv) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). Photographs may be taken once the animal(s) have been moved from the waterfront area. (3) In the event that the Navy dis covers an injured or dead marine mam mal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposi tion), the Navy shall immediately re port the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the in formation identified in paragraph (h)(2) of this section. Activities may con tinue while NMFS reviews the cir cumstances of the incident. NMFS will work with the Navy to determine whether additional mitigation meas ures or modifications to the activities are appropriate. (4) In the event that the Navy dis covers an injured or dead marine mam mal and determines that the injury or death is not associated with or related to the activities defined in § 218.20 (e.g., VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00213 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 204 50 CFR Ch. II (10–1–22 Edition) § 218.26 previously wounded animal, carcass with moderate to advanced decomposi tion, scavenger damage), Navy shall re port the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the dis covery. The Navy shall provide photo graphs or video footage or other docu mentation of the stranded animal sighting to NMFS. Photographs may be taken once the animal has been moved from the waterfront area. § 218.26 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of the regulations in this subpart. (c) If an LOA expires prior to the ex piration date of the regulations in this subpart, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and ob tain a modification of the LOA as de scribed in § 218.27. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under the regulations in this sub part. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 218.27 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.26 for the activity identified in § 218.20(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under the regulations in this subpart were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of pro posed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.26 for the activity identified in § 218.20(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive management. NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring set forth in the regulations in this subpart. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from the Navy’s moni toring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00214 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 205 National Marine Fisheries Service/NOAA, Commerce § 218.34 a manner, extent or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.26, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 218.28–218.29 [Reserved] Subpart D—Taking Marine Mam mals Incidental to U.S. Navy Construction Activities at Naval Weapons Station Seal Beach, California SOURCE: 85 FR 10325, Feb. 24, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 10325, Feb. 24, 2020, subpart D was added, effective Mar. 25, 2020, through Mar. 25, 2025. § 218.30 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to con duct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs inci dental to maintenance construction ac tivities. (b) The taking of marine mammals by the Navy may be authorized in a Letter of Authorization (LOA) only if it occurs within California coastal waters in the vicinity of Naval Weap ons Station Seal Beach. § 218.31 Effective dates. Regulations in this subpart are effec tive from March 25, 2020, through March 25, 2025. § 218.32 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.36, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.30(b) by Level B harassment associated with construction activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA. § 218.33 Prohibitions. Notwithstanding takings con templated in § 218.32 and authorized by an LOA issued under §§ 216.106 of this chapter and 218.36, no person in connec tion with the activities described in § 218.30 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.36; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 218.34 Mitigation requirements. When conducting the activities iden tified in § 218.30(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.36 must be implemented. These mitigation measures shall include but are not limited to: (a) General conditions. (1) A copy of any issued LOA must be in the posses sion of the Navy, its designees, and work crew personnel operating under the authority of the issued LOA. (2) The Navy shall conduct briefings for construction supervisors and crews, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00215 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 206 50 CFR Ch. II (10–1–22 Edition) § 218.34 the monitoring team, and Navy staff prior to the start of all pile driving ac tivity, and when new personnel join the work, in order to explain responsibil ities, communication procedures, the marine mammal monitoring protocol, and operational procedures. (b) Shutdown zones. (1) For all pile driving activity, the Navy shall imple ment a minimum shutdown zone of a 10 m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease. (2) For all pile driving activity, the Navy shall implement shutdown zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.36. If a marine mammal comes within or approaches the shut down zone, such operations shall cease. (3) For all pile driving activity, the Navy shall designate monitoring zones with radial distances as identified in any LOA issued under §§ 216.106 of this chapter and 218.36. (c) Shutdown protocols. (1) The Navy shall deploy marine mammal observers as described in § 218.35. (2) For all pile driving activities, a minimum of one observer shall be sta tioned at the active pile driving rig or in reasonable proximity in order to monitor the shutdown zone. (3) Monitoring shall take place from 30 minutes prior to initiation of pile driving activity through 30 minutes post-completion of pile driving activ ity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of ma rine mammals, and pile driving may commence when observers have de clared the shutdown zone clear of ma rine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to re main in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and docu mented. Monitoring shall occur throughout the time required to drive a pile. A determination that the shut down zone is clear must be made dur ing a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye). (4) If a marine mammal approaches or enters the shutdown zone, all pile driving activities at that location shall be halted. If pile driving is halted or delayed due to the presence of a marine mammal, the activity may not com mence or resume until either the ani mal has voluntarily left and been vis ually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal. (5) During conditions where the en tire shutdown zone is not visible (e.g., dark, fog, heavy rain), impact pile driv ing must be delayed until the PSO is confident marine mammals within the shutdown zone could be detected. (6) Monitoring shall be conducted by trained observers, who shall have no other assigned tasks during monitoring periods. Trained observers shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator. The Navy shall adhere to the following additional ob server qualifications: (i) Independent observers (i.e., not construction personnel) are required. (ii) At least one observer must have prior experience working as an ob server. (iii) Other observers may substitute education (degree in biological science or related field) or training for experi ence. (iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead ob server must have prior experience working as an observer. (v) The Navy shall submit observer CVs for approval by NMFS. (d) Soft start. The Navy shall use soft start techniques for impact pile driv ing. Soft start for impact drivers re quires contractors to provide an initial set of three strikes at reduced energy, followed by a thirty-second waiting pe riod, then two subsequent reduced en ergy three-strike sets. Soft start shall be implemented at the start of each day’s impact pile driving and at any time following cessation of impact pile driving for a period of thirty minutes or longer. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00216 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 207 National Marine Fisheries Service/NOAA, Commerce ยง 218.35 ยง 218.35 Requirements for monitoring and reporting. (a) Trained observers shall receive a general environmental awareness brief ing conducted by Navy staff. At min imum, training shall include identi fication of marine mammals that may occur in the project vicinity and rel evant mitigation and monitoring re quirements. All observers shall have no other construction-related tasks while conducting monitoring. (b) For shutdown zone monitoring, the Navy shall report on implementa tion of shutdown or delay procedures, including whether the procedures were not implemented and why (when rel evant). (c) The Navy shall deploy a minimum of one additional observer to aid in monitoring disturbance zones. This ob server shall collect sighting data and behavioral responses to pile driving for marine mammal species observed in the region of activity during the period of activity, and shall communicate with the shutdown zone observer as ap propriate with regard to the presence of marine mammals. All observers shall be trained in identification and reporting of marine mammal behav iors. (d) The Navy must submit annual and summary reports. (1) Navy shall submit an annual sum mary report to NMFS not later than 90 days following the end of each calendar year. Navy shall provide a final report within 30 days following resolution of comments on the draft report. These reports shall contain, at minimum, the following: (i) Dates and times (begin and end) of all marine mammal monitoring; (ii) Construction activities occurring during each daily observation period, including how many and what type of piles were driven or removed and by what method (i.e., impact or vibra tory); (iii) Weather parameters and water conditions during each monitoring pe riod (e.g., wind speed, percent cover, visibility, sea state); (iv) The number of marine mammals observed, by species, relative to the pile location and if pile driving or re moval was occurring at time of sight ing; (v) Age and sex class, if possible, of all marine mammals observed; (vi) PSO locations during marine mammal monitoring; (vii) Distances and bearings of each marine mammal observed to the pile being driven or removed for each sight ing (if pile driving or removal was oc curring at time of sighting); (viii) Description of any marine mammal behavior patterns during ob servation, including direction of travel; (ix) Number of individuals of each species (differentiated by month as ap propriate) detected within the moni toring zone, and estimates of number of marine mammals taken, by species (a correction factor may be applied to total take numbers, as appropriate); (x) Detailed information about any implementation of any mitigation trig gered (e.g., shutdowns and delays), a description of specific actions that en sued, and resulting behavior of the ani mal, if any; (xi) Description of attempts to distin guish between the number of individual animals taken and the number of incidences of take, such as ability to track groups or individuals; and, (xii) An extrapolation of the esti mated takes by Level B harassment based on the number of observed expo sures within the Level B harassment zone and the percentage of the Level B harassment zone that was not visible, when applicable. (2) Navy shall submit a comprehen sive summary report to NMFS not later than ninety days following the conclusion of marine mammal moni toring efforts described in this subpart. (e) Reporting of injured or dead ma rine mammals: In the event that per sonnel involved in the survey activities discover an injured or dead marine mammal, the LOA-holder must report the incident to the Office of Protected Resources (OPR), NMFS and to the West Coast Regional Stranding Net work as soon as feasible. The report must include the following informa tion: (1) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00217 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 208 50 CFR Ch. II (10–1–22 Edition) § 218.36 (2) Species identification (if known) or description of the animal(s) in volved; (3) Condition of the animal(s) (includ ing carcass condition if the animal is dead); (4) Observed behaviors of the ani mal(s), if alive; (5) If available, photographs or video footage of the animal(s); and (6) General circumstances under which the animal was discovered. § 218.36 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, the Navy must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, the Navy may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, the Navy must apply for and ob tain a modification of the LOA as de scribed in § 218.37. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 218.37 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.36 for the activity identified in § 218.30(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section), and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga tion, monitoring, or reporting (exclud ing changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.36 for the activity identified in § 218.30(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive management—NMFS may modify (including augment) the exist ing mitigation, monitoring, or report ing measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from the Navy’s moni toring from the previous year(s). (B) Results from other marine mam mal and/or sound research or studies. (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00218 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 209 National Marine Fisheries Service/NOAA, Commerce § 218.64 (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.36, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 218.38–218.39 [Reserved] Subparts E–F [Reserved] Subpart G—Taking of Marine Mammals Incidental to Test ing and Training Activities Conducted at the Eglin Gulf Test and Training Range in the Gulf of Mexico SOURCE: 83 FR 5568, Feb. 8, 2018, unless oth erwise noted. EFFECTIVE DATE NOTE: At 83 FR 5568, Feb. 8, 2018, subpart G was added, effective Feb. 13, 2018, through Feb. 12, 2023. § 218.60 Specified activity and speci fied geographical region. (a) Regulations in this subpart apply only to Eglin Air Force Base (Eglin AFB) and those persons it authorizes to conduct activities on its behalf, for the taking of marine mammals as out lined in paragraph (b) of this section and incidental to testing and training missions in the Eglin Gulf Test and Training Range (EGTTR). (b) The taking of marine mammals by Eglin AFB pursuant to a Letter of Authorization (LOA) is authorized only if it occurs at the EGTTR in the Gulf of Mexico. § 218.61 Effective dates. Regulations in this subpart are effec tive February 13, 2018 through Feb ruary 12, 2023. § 218.62 Permissible methods of tak ing. Under a Letter of Authorization (LOA) issued pursuant to § 216.106 of this chapter and § 218.66, the Holder of the LOA (herein after Eglin AFB) may incidentally, but not intentionally, take marine mammals by Level A and Level B harassment associated with EGTTR activities within the area de scribed in § 218.60 provided the activi ties are in compliance with all terms, conditions, and requirements of these regulations in this subpart and the ap propriate LOA. § 218.63 Prohibitions. Notwithstanding takings con templated in § 218.60 and authorized by an LOA issued under § 216.106 of this chapter and § 218.66, no person in con nection with the activities described in § 218.60 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under § 216.106 of this chapter and § 218.66. (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than as specified; (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or § 218.64 Mitigation requirements. When conducting activities identified in § 218.60, the mitigation measures contained in the LOA issued under § 216.106 of this chapter and § 218.66 must be implemented. These mitiga tion measures shall include but are not limited to the following general condi tions: (a) If daytime weather and/or sea conditions preclude adequate moni toring for detecting marine mammals and other marine life, EGTTR oper ations must be delayed until adequate sea conditions exist for monitoring to be undertaken. (b) Restrictions on time of activities. (1) Missions involving the use of live bombs, missiles and rockets shall only occur during daylight hours. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00219 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 210 50 CFR Ch. II (10–1–22 Edition) § 218.65 (2) Missions during daylight hours shall occur no earlier than two hours after sunrise and no later than two hours prior to sunset. (c) Required delay of live ordnance mission activities shall occur if a pro tected species, large schools of fish or large flocks of birds feeding at the sur face are observed within the ZOI. Mis sion activities cannot resume until one of the following conditions is met: (1) Protected species marine mam mal(s) is confirmed to be outside of the ZOI on a heading away from the target area; or (2) Protected species marine mam mal(s) is not seen again for 30 minutes and presumed to be outside the Level A harassment ZOI. (3) Large groupings of fish or birds leading to required delay are confirmed outside of the ZOI. (d) Gunnery operations shall require employment of the following mitiga tion measures. (1) Use of 105-millimeter (mm) train ing rounds (TR) during nighttime mis sions. (2) Ramp-up procedures requiring the use of the lowest caliber munition and proceeding to the highest, which means the munitions would be fired in the order of 25 mm, 40 mm, and 105 mm. (3) Any pause in live fire activities greater than 10 minutes shall require reinitiation of protected species sur veys. (4) Missions shall be conducted with in the 200-meter (m) isobaths to pro vide greater protection to several spe cies. (e) If one or more sperm or baleen whales are detected during pre-mission monitoring activities, mission activi ties shall be aborted/suspended for the remainder of the day. (f) Additional mitigation measures as contained in an LOA. § 218.65 Requirements for monitoring and reporting. (a) Holders of LOAs issued pursuant to § 218.66 for activities described in § 218.60(a) are required to cooperate with NMFS, and any other Federal, state, or local agency with authority to monitor the impacts of the activity on marine mammals. If the authorized activity identified in § 218.60(a) is thought to have resulted in the mor tality or injury of any marine mam mals or take of marine mammals not identified in § 218.60(b), then the Holder of the LOA must notify the Director, Office of Protected Resources, NMFS, or designee, by telephone (301) 427–8401, and the Southeast Regional Office (phone within 24 hours of the injury or death). (b) Monitoring shall be conducted by personnel who have completed Eglin’s Marine Species Observer Training Course, which was developed in co operation with the National Marine Fisheries Service. (c) The Holder of the LOA shall use mission-reporting forms to track their use of the EGTTR for testing and training missions and to track marine mammal observations. (d) Depending on the mission cat egory, visual aerial-based, vessel-based, or video-based marine mammal surveys shall be conducted before and after live ordnance mission activities each day. (e) Vessel-based surveys shall begin approximately one and one-half hour prior to live weapon deployment and shall be completed 30 minutes prior to the start of mission. (f) Surveys shall continue for ap proximately one hour or until the en tire ZOI has been adequately surveyed, whichever comes first. (g) Post-mission monitoring surveys shall commence once the mission has ended or as soon as the mission area is declared safe. (h) Vessel-based post-mission surveys shall be conducted for 30 minutes after completion of live ordnance missions. (i) Any marine mammals detected in the ZOI during post-mission surveys, for which take are authorized, shall be counted as takes by Level B harass ment. Any marine mammals detected in the ZOI during post-mission surveys, for which take is not authorized, shall be reported immediately to the Office of Protected Resources, NMFS. (j) A minimum of two dedicated ob servers shall be stationed on each ves sel. (k) Observers shall utilize optical equipment with sufficient magnifica tion to allow observation of surfaced animals. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00220 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 211 National Marine Fisheries Service/NOAA, Commerce ยง 218.65 (l) The size of the survey area for each mission shall be determined ac cording to the radius of impact for the given threshold of each munition/deto nation scenario. These ranges shall be monitored during pre-mission surveys for each activity. (m) Some missions shall be delayed to allow survey platforms to evacuate the human safety zone after pre-mis sions surveys are completed. (n) Any aerial-based pre-mission sur veys shall be conducted by observers aboard non-mission aircraft or mission aircraft who have completed the Ma rine Species Observer Training. (o) Gunship standard procedures ini tiated prior to initiation of live-firing events shall require at least two com plete orbits around the survey mission site at the appropriate airspeed and monitoring altitude and include the following: (1) Monitoring for marine mammals shall continue throughout the mission by mission crew; (2) Where applicable aircraft optical and electronic sensors shall be used for marine mammal observation; (3) If any marine mammals are de tected during pre-mission surveys or during the mission, activities shall be immediately halted until the ZOI area is clear of all marine mammals, or the mission shall be relocated to another target area. If the mission is relocated, the pre-mission survey procedures shall be repeated; (4) If multiple firing missions are conducted within the same flight, standard clearance procedures shall precede each mission; and (5) Gunship crews shall conduct a post-mission survey beginning at the operational altitude and proceeding through a spiraling descent to the des ignated monitoring altitude. (p) Video-based monitoring from the GRATV shall be conducted where ap propriate via live high-definition video feed. (1) Supplemental video monitoring shall be conducted through the employ ment of additional aerial assets includ ing aerostats and drones when avail able. (2) [Reserved] (q) Acoustic Monitoring: (1) Eglin AFB shall conduct a passive acoustic monitoring (PAM) study as an initial step towards understanding acoustic impacts from underwater det onations, if funding is approved; (2) Eglin AFB shall conduct PAM for marine mammal vocalizations before, during, and after live missions in the EGTTR, once funding is approved; and (3) The results of the PAM study shall be submitted to NMFS OPR as a draft monitoring report within 90 days of completion of the study. (r) The Holder of the LOA is required to: (1) Submit an annual draft report to NMFS OPR on all monitoring con ducted under the LOA within 90 days of the completion of marine mammal monitoring, or 60 days prior to the issuance of any subsequent LOA for projects at the EGTTR, whichever comes first. A final report shall be pre pared and submitted within 30 days fol lowing resolution of comments on the draft report from NMFS. This report must contain, at a minimum, the fol lowing information: (i) Date and time of each EGTTR mission; (ii) A complete description of the pre mission and post-mission activities re lated to mitigating and monitoring the effects of EGTTR missions on marine mammal populations; and (iii) Results of the monitoring pro gram, including numbers by species/ stock of any marine mammals noted injured or killed as a result of the EGTTR mission and number of marine mammals (by species if possible) that may have been harassed due to pres ence within the zone of influence. (2) The draft report shall be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final report prior to acceptance by NMFS. The draft report shall be considered the final report for this activity under the LOA if NMFS has not provided comments and rec ommendations within 90 days of receipt of the draft report. (s) Reporting injured or dead marine mammals: (1) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the LOA, such as VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00221 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 212 50 CFR Ch. II (10–1–22 Edition) § 218.66 an injury for species not authorized (Level A harassment), serious injury, or mortality, Eglin AFB shall imme diately cease the specified activities and report the incident to the Office of Protected Resources, NMFS, and the Southeast Regional Office, NMFS. The report must include the following in formation: (i) Time and date of the incident; (ii) Description of the incident; (iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility); (iv) Description of all marine mam mal observations in the 24 hours pre ceding the incident; (v) Species identification or descrip tion of the animal(s) involved; (vi) Fate of the animal(s); and (vii) Photographs or video footage of the animal(s). (2) Activities shall not resume until NMFS is able to review the cir cumstances of the prohibited take. NMFS shall work with Eglin AFB to determine what measures are nec essary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Eglin AFB may not resume their activities in the EGTTR until notified by NMFS. (3) In the event that Eglin AFB dis covers an injured or dead marine mam mal, and the lead observer determines that the cause of the injury or death is unknown and the death is relatively re cent (e.g., in less than a moderate state of decomposition), Eglin AFB shall im mediately report the incident to the Office of Protected Resources, NMFS, and the Southeast Regional Office, NMFS. The report must include the same information identified in para graph (p)(1) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS shall work with Eglin AFB to deter mine whether additional mitigation measures or modifications to the ac tivities are appropriate. (4) In the event that Eglin AFB dis covers an injured or dead marine mam mal, and the lead observer determines that the injury or death is not associ ated with or related to the activities authorized in the LOA (e.g., previously wounded animal, carcass with mod erate to advanced decomposition, scav enger damage), Eglin AFB shall report the incident to the Office of Protected Resources, NMFS, and the Southeast Regional Office, NMFS, within 24 hours of the discovery. Eglin AFB shall pro vide photographs or video footage or other documentation of the stranded animal sighting to NMFS. (5) Additional Conditions: (i) The Holder of the LOA must in form the Director, Office of Protected Resources, NMFS, (301–427–8401) or des ignee prior to the initiation of any changes to the monitoring plan for a specified mission activity. (ii) A copy of the LOA must be in the possession of the safety officer on duty each day that EGTTR missions are conducted. (iii) The LOA may be modified, sus pended or withdrawn if the holder fails to abide by the conditions prescribed herein, or if NMFS determines the au thorized taking is having more than a negligible impact on the species or stock of affected marine mammals. § 218.66 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, Eglin AFB must apply for and obtain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, Eglin AFB must apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, Eglin AFB must apply for and ob tain a modification of the LOA as de scribed in § 218.67. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Number of marine mammals, by species and age class, authorized to be taken; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species of marine mammals au thorized for taking, on its habitat, and on the availability of the species for subsistence uses; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00222 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 213 National Marine Fisheries Service/NOAA, Commerce § 218.70 (4) Requirements for monitoring and reporting. (f) Issuance of an LOA shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking al lowable under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within 30 days of a deter mination. § 218.67 Renewals and modifications of Letters of Authorization. (a) An LOA issued under § 216.106 of this chapter and § 218.66 for the activity identified in § 218.60(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The specified activity and mitiga tion, monitoring, and reporting meas ures, as well as the anticipated im pacts, are the same as those described and analyzed for these regulations (ex cluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal request by the applicant that in cludes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of authorized takes (or dis tribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis illustrating the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under § 216.106 of this chapter and § 218.66 for the activity identified in § 218.60(a) may be modified by NMFS under the following cir cumstances: (1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or re porting measures (after consulting with Eglin AFB regarding the practica bility of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regula tions; (2) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA are: (i) Results from Eglin AFB’s annual monitoring reports; (ii) Results from other marine mam mal and sound research or studies; or (iii) Any information that reveals marine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (3) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of proposed LOA in the FEDERAL REGISTER and solicit public comment. (4) Emergencies—If NMFS deter mines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals specified under LOAs issued pursuant to § 216.106 of this chapter and § 218.60, an LOA may be modified with out prior notice or opportunity for pub lic comment. Notice would be pub lished in the FEDERAL REGISTER within 30 days of the action. §§ 218.68–218.69 [Reserved] Subpart H—Taking and Importing Marine Mammals; U.S. Navy’s Hawaii-Southern California Training and Testing (HSTT) SOURCE: 85 FR 41893, July 10, 2020,unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 41893, July 10, 2020, subpart H was revised, effective from July 10, 2020, to Dec. 20, 2025. § 218.70 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs inci dental to the activities listed in para graph (c) of this section. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00223 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 214 50 CFR Ch. II (10–1–22 Edition) § 218.71 (b) The taking of marine mammals by the Navy under this subpart may be authorized in Letters of Authorization (LOAs) only if it occurs within the Ha waii-Southern California Training and Testing (HSTT) Study Area, which in cludes established operating and warn ing areas across the north-central Pa cific Ocean, from the mean high tide line in Southern California west to Ha waii and the International Date Line. The Study Area includes the at-sea areas of three existing range com plexes, the Hawaii Range Complex (HRC), the Southern California Range Complex (SOCAL), and the Silver Strand Training Complex, and overlaps a portion of the Point Mugu Sea Range (PMSR). Also included in the Study Area are Navy pierside locations in Ha waii and Southern California, Pearl Harbor, San Diego Bay, and the transit corridor on the high seas where sonar training and testing may occur. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy conducting training and testing activities, includ ing: (1) Training. (i) Amphibious warfare; (ii) Anti-submarine warfare; (iii) Electronic warfare; (iv) Expeditionary warfare; (v) Mine warfare; (vi) Surface warfare; and (vii) Pile driving. (2) Testing. (i) Naval Air Systems Command Testing Activities; (ii) Naval Sea Systems Command Testing Activities; (iii) Office of Naval Research Testing Activities; and (iv) Naval Information Warfare Sys tems Command. § 218.71 Effective dates. Regulations in this subpart are effec tive from July 10, 2020, through Decem ber 20, 2025. § 218.72 Permissible methods of tak ing. (a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.76, the Holder of the LOAs (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.70(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives as well as serious injury or mortality associated with vessel strikes and explosives, provided the ac tivity is in compliance with all terms, conditions, and requirements of these regulations in this subpart and the ap plicable LOAs. (b) The incidental take of marine mammals by the activities listed in § 218.70(c) is limited to the following 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. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00224 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 215 National Marine Fisheries Service/NOAA, Commerce § 218.74 TABLE 1 TO § 218.72—Continued Species Stock 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. 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. Notwithstanding incidental takings contemplated in § 218.72(a) and author ized by LOAs issued under §§ 216.106 of this chapter and 218.76, no person in connection with the activities listed in § 218.70(c) may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.76; (b) Take any marine mammal not specified in § 218.72(b); (c) Take any marine mammal speci fied in § 218.72(b) in any manner other than as specified in the LOAs; or (d) Take a marine mammal specified in § 218.72(b) if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal. § 218.74 Mitigation requirements. When conducting the activities iden tified in § 218.70(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 218.76 must be implemented. These mitigation measures include, but are not limited to: (a) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wher ever an applicable training or testing VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00225 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 216 50 CFR Ch. II (10–1–22 Edition) § 218.74 activity takes place within the HSTT Study Area for each applicable activity category or stressor category and in cludes acoustic stressors (i.e., active sonar, air guns, pile driving, weapons firing noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber projectiles, missiles and rockets, bombs, sinking exercises, mines, anti-swimmer grenades, and mat weave and obstacle loading), and physical disturbance and strike stressors (i.e., vessel movement; towed in-water devices; small-, medium-, and large-caliber non-explosive practice munitions; non-explosive missiles and rockets; and non-explosive bombs and mine shapes). (1) Environmental awareness and edu cation. Appropriate Navy personnel (in cluding civilian personnel) involved in mitigation, monitoring, and training or testing activity reporting under the specified activities will complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identified in their career path training plan. Modules in clude: Introduction to the U.S. Navy Afloat Environmental Compliance Training Series, Marine Species Aware ness Training; U.S. Navy Protective Measures Assessment Protocol; and U.S. Navy Sonar Positional Reporting System and Marine Mammal Incident Reporting. (2) Active sonar. Active sonar includes low-frequency active sonar, mid-fre quency active sonar, and high-fre quency active sonar. For vessel-based activities, mitigation applies only to sources that are positively controlled and deployed from manned surface ves sels (e.g., sonar sources towed from manned surface platforms). For air craft-based activities, mitigation ap plies only to sources that are posi tively controlled and deployed from manned aircraft that do not operate at high altitudes (e.g., rotary-wing air craft). Mitigation does not apply to ac tive sonar sources deployed from un manned aircraft or aircraft operating at high altitudes (e.g., maritime patrol aircraft). (i) Number of Lookouts and observation platform—(A) Hull-mounted sources. One Lookout for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at anchor (including pierside); and two Lookouts for plat forms without space or manning re strictions while underway (at the for ward part of the ship). (B) Sources that are not hull-mounted sources. One Lookout on the ship or air craft conducting the activity. (ii) Mitigation zone and requirements. (A) During the activity, at 1,000 yards (yd) Navy personnel must power down 6 decibels (dB), at 500 yd Navy personnel must power down an additional 4 dB (for a total of 10 dB), and at 200 yd Navy personnel must shut down for low-frequency active sonar ≥200 dB and hull-mounted mid-frequency active sonar; or at 200 yd Navy personnel must shut down for low-frequency ac tive sonar <200 dB, mid-frequency ac tive sonar sources that are not hull mounted, and high-frequency active sonar. (B) Prior to the start of the activity (e.g., when maneuvering on station), Navy personnel must observe the miti gation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of active sonar transmission until the mitigation zone is clear. Navy per sonnel must also observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of active sonar transmission. (C) During the activity for low-fre quency active sonar at or above 200 dB and hull-mounted mid-frequency active sonar, Navy personnel must observe the mitigation zone for marine mam mals and power down active sonar transmission by 6 dB if marine mam mals are observed within 1,000 yd of the sonar source; power down by an addi tional 4 dB (for a total of 10 dB total) if marine mammals are observed with in 500 yd of the sonar source; and cease transmission if marine mammals are observed within 200 yd of the sonar source. (D) During the activity for low-fre quency active sonar below 200 dB, mid frequency active sonar sources that are not hull mounted, and high-frequency active sonar, Navy personnel must ob serve the mitigation zone for marine VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00226 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 217 National Marine Fisheries Service/NOAA, Commerce § 218.74 mammals and cease active sonar trans mission if marine mammals are ob served within 200 yd of the sonar source. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing or powering up active sonar transmission) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; the mitigation zone has been clear from any additional sightings for 10 minutes (min) for aircraft-deployed sonar sources or 30 min for vessel-de ployed sonar sources; for mobile activi ties, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or for activities using hull-mounted sonar where a dolphin(s) is observed in the mitigation zone, the Lookout con cludes that the dolphin(s) is delib erately closing in on the ship to ride the ship’s bow wave, and is therefore out of the main transmission axis of the sonar (and there are no other ma rine mammal sightings within the mitigation zone). (3) Air guns—(i) Number of Lookouts and observation platform. One Lookout positioned on a ship or pierside. (ii) Mitigation zone and requirements. 150 yd around the air gun. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel must also observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of air gun use. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease air gun use. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing air gun use) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the air gun; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile activities, the air gun has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (4) Pile driving. Pile driving and pile extraction sound during Elevated Causeway System training. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the shore, the elevated cause way, or a small boat. (ii) Mitigation zone and requirements. 100 yd around the pile driver. (A) Prior to the initial start of the activity (for 30 min), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegeta tion is observed, Navy personnel must delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must delay the start of pile driving or vibratory pile extraction. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease impact pile driving or vi bratory pile extraction. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. The Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00227 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 218 50 CFR Ch. II (10–1–22 Edition) § 218.74 start) or during the activity (by not re commencing pile driving or pile extrac tion) until one of the following condi tions has been met: The animal is ob served exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determina tion of its course, speed, and movement relative to the pile driving location; or the mitigation zone has been clear from any additional sightings for 30 min. (5) Weapons firing noise. Weapons fir ing noise associated with large-caliber gunnery activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the ship conducting the fir ing. Depending on the activity, the Lookout could be the same as the one provided for under ‘‘Explosive medium caliber and large-caliber projectiles’’ or under ‘‘Small-, medium-, and large-cal iber non-explosive practice munitions’’ in paragraphs (a)(8)(i) and (a)(18)(i) of this section. (ii) Mitigation zone and requirements. Thirty degrees on either side of the fir ing line out to 70 yd from the muzzle of the weapon being fired. (A) Prior to the start of the activity, Navy personnel must observe the miti gation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of weapons firing until the miti gation zone is clear. Navy personnel must also observe the mitigation zone for marine mammals; if marine mam mals are observed, Navy personnel must relocate or delay the start of weapons firing. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease weapons firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing weapons firing) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile ac tivities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the loca tion of the last sighting. (6) Explosive sonobuoys—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft or on a small boat. If additional platforms are participating in the ac tivity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 600 yd around an explosive sonobuoy. (A) Prior to the initial start of the activity (e.g., during deployment of a sonobuoy field, which typically lasts 20–30 min), Navy personnel must ob serve the mitigation zone for floating vegetation; if floating vegetation is ob served, Navy personnel must relocate or delay the start of sonobuoy or source/receiver pair detonations until the mitigation zone is clear. Navy per sonnel must conduct passive acoustic monitoring for marine mammals and use information from detections to as sist visual observations. Navy per sonnel also must visually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of sonobuoy or source/receiver pair detonations. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease sonobuoy or source/receiver pair detonations. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00228 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 219 National Marine Fisheries Service/NOAA, Commerce § 218.74 animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sono buoy; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves air craft that have fuel constraints (e.g., helicopter), or 30 min when the activity involves aircraft that are not typically fuel constrained. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (7) Explosive torpedoes—(i) Number of Lookouts and observation platform. One Lookout positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel posi tioned in those assets (e.g., safety ob servers, evaluators) must support ob serving the mitigation zone for appli cable biological resources while per forming their regular duties. (ii) Mitigation zone and requirements. 2,100 yd around the intended impact lo cation. (A) Prior to the initial start of the activity (e.g., during deployment of the target), Navy personnel must observe the mitigation zone for floating vege tation and jellyfish aggregations; if floating vegetation or jellyfish aggre gations are observed, Navy personnel must relocate or delay the start of fir ing until the mitigation zone is clear. Navy personnel must conduct passive acoustic monitoring for marine mam mals and use the information from de tections to assist visual observations. Navy personnel also must visually ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (B) During the activity, Navy per sonnel must observe for marine mam mals and jellyfish aggregations; if ma rine mammals or jellyfish aggregations are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (D) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (8) Explosive medium-caliber and large caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation ap plies to activities using a surface tar get. (i) Number of Lookouts and observation platform. One Lookout must be on the vessel or aircraft conducting the activ ity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in ‘‘Weapons firing noise’’ in paragraph (a)(5)(i) of this section. If additional platforms are VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00229 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 220 50 CFR Ch. II (10–1–22 Edition) § 218.74 participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 200 yd around the intended impact location for air-to-surface activities using explosive medium-caliber projec tiles. (B) 600 yd around the intended im pact location for surface-to-surface ac tivities using explosive medium-caliber projectiles. (C) 1,000 yd around the intended im pact location for surface-to-surface ac tivities using explosive large-caliber projectiles. (D) Prior to the start of the activity (e.g., when maneuvering on station), Navy personnel must observe the miti gation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear. Navy personnel also must ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (E) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (F) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (G) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (9) Explosive missiles and rockets. Air craft-deployed explosive missiles and rockets. Mitigation applies to activi ties using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. If additional plat forms are participating in the activity, Navy personnel positioned in those as sets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 900 yd around the intended impact location for missiles or rockets with 0.6–20 lb net explosive weight. (B) 2,000 yd around the intended im pact location for missiles with 21–500 lb net explosive weight. (C) Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for float ing vegetation; if floating vegetation is observed, Navy personnel must relo cate or delay the start of firing until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of firing. (D) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00230 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 221 National Marine Fisheries Service/NOAA, Commerce § 218.74 the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets will assist in the visual observation of the area where detonations occurred. (10) Explosive bombs—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 2,500 yd around the intended target. (A) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for floating vegeta tion; if floating vegetation is observed, Navy personnel must relocate or delay the start of bomb deployment until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of bomb deployment. (B) During the activity (e.g., during target approach), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must cease bomb deployment. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing bomb deployment) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; the mitigation zone has been clear from any addi tional sightings for 10 min; or for ac tivities using mobile targets, the in tended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (D) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (11) Sinking exercises—(i) Number of Lookouts and observation platform. Two Lookouts (one must be positioned in an aircraft and one must be positioned on a vessel). If additional platforms are participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. 2.5 nautical miles (nmi) around the tar get ship hulk. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00231 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 222 50 CFR Ch. II (10–1–22 Edition) § 218.74 (A) Prior to the initial start of the activity (90 min prior to the first fir ing), Navy personnel must conduct aer ial observations of the mitigation zone for floating vegetation and jellyfish ag gregations; if floating vegetation or jellyfish aggregations are observed, Navy personnel must delay the start of firing until the mitigation zone is clear. Navy personnel also must con duct aerial observations of the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must delay the start of firing. (B) During the activity, Navy per sonnel must conduct passive acoustic monitoring for marine mammals and use the information from detections to assist visual observations. Navy per sonnel must visually observe the miti gation zone for marine mammals from the vessel; if marine mammals are ob served, Navy personnel must cease fir ing. Immediately after any planned or unplanned breaks in weapons firing of longer than two hours, Navy personnel must observe the mitigation zone for marine mammals from the aircraft and vessel; if marine mammals are ob served, Navy personnel must delay re commencement of firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the target ship hulk; or the mitigation zone has been clear from any additional sightings for 30 min. (D) After completion of the activity (for two hours after sinking the vessel or until sunset, whichever comes first), Navy personnel must observe for ma rine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident reporting procedures. If addi tional platforms are supporting this ac tivity (e.g., providing range clearance), these Navy assets will assist in the vis ual observation of the area where deto nations occurred. (12) Explosive mine countermeasure and neutralization activities—(i) Number of Lookouts and observation platform. (A) One Lookout must be positioned on a vessel or in an aircraft when imple menting the smaller mitigation zone. (B) Two Lookouts (one must be posi tioned in an aircraft and one must be on a small boat) when implementing the larger mitigation zone. (C) If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 600 yd around the detonation site for activities using 0.1–5 lb net explo sive weight. (B) 2,100 yd around the detonation site for activities using 6–650 lb net ex plosive weight (including high explo sive target mines). (C) Prior to the initial start of the activity (e.g., when maneuvering on station; typically, 10 min when the ac tivity involves aircraft that have fuel constraints, or 30 min when the activ ity involves aircraft that are not typi cally fuel constrained), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegeta tion is observed, Navy personnel must relocate or delay the start of detona tions until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of detonations. (D) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals, concentra tions of seabirds, and individual for aging seabirds; if marine mammals, concentrations of seabirds, or indi vidual foraging seabirds are observed, Navy personnel must cease detona tions. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity or a sighting of seabird concentrations VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00232 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 223 National Marine Fisheries Service/NOAA, Commerce § 218.74 or individual foraging seabirds during the activity. Navy personnel must allow a sighted animal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not re commencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to deto nation site; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After completion of the activity (typically 10 min when the activity in volves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained), Navy personnel must observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (13) Explosive mine neutralization ac tivities involving Navy divers—(i) Number of Lookouts and observation platform. (A) Two Lookouts (two small boats with one Lookout each, or one Lookout must be on a small boat and one must be in a rotary-wing aircraft) when im plementing the smaller mitigation zone. (B) Four Lookouts (two small boats with two Lookouts each), and a pilot or member of an aircrew must serve as an additional Lookout if aircraft are used during the activity, when imple menting the larger mitigation zone. (C) All divers placing the charges on mines will support the Lookouts while performing their regular duties and will report applicable sightings to their supporting small boat or Range Safety Officer. (D) If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 500 yd around the detonation site during activities under positive control using 0.1–20 lb net explosive weight. (B) 1,000 yd around the detonation site during all activities using time delay fuses (0.1–29 lb net explosive weight) and during activities under positive control using 21–60 lb net ex plosive weight charges. (C) Prior to the initial start of the activity (e.g., when maneuvering on station for activities under positive control; 30 min for activities using time-delay firing devices), Navy per sonnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of det onations or fuse initiation until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of detonations or fuse initiation. (D) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals, concentra tions of seabirds, and individual for aging seabirds (in the water and not on shore); if marine mammals, concentra tions of seabirds, or individual foraging seabirds are observed, Navy personnel must cease detonations or fuse initi ation. To the maximum extent prac ticable depending on mission require ments, safety, and environmental con ditions, Navy personnel must position boats near the mid-point of the mitiga tion zone radius (but outside of the det onation plume and human safety zone), must position themselves on opposite sides of the detonation location (when two boats are used), and must travel in a circular pattern around the detona tion location with one Lookout observ ing inward toward the detonation site and the other observing outward to ward the perimeter of the mitigation zone. If used, Navy aircraft must travel in a circular pattern around the deto nation location to the maximum ex tent practicable. Navy personnel must VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00233 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 224 50 CFR Ch. II (10–1–22 Edition) § 218.74 not set time-delay firing devices (0.1–29 lb. net explosive weight) to exceed 10 min. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity or a sighting of seabird concentrations or individual foraging seabirds during the activity. Navy personnel must allow a sighted animal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not re commencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detonation site; or the mitigation zone has been clear from any additional sightings for 10 min during activities under positive control with aircraft that have fuel constraints, or 30 min during activities under positive control with aircraft that are not typically fuel constrained and during activities using time-delay firing devices. (F) After completion of an activity, the Navy must observe for marine mammals for 30 min. Navy personnel must observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual obser vation of the area where detonations occurred. (14) Maritime security operations—anti swimmer grenades—(i) Number of Look outs and observation platform. One Look out must be positioned on the small boat conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 200 yd around the intended detonation location. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start of detonations until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of detonations. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; the mitigation zone has been clear from any addi tional sightings for 30 min; or the in tended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (D) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets will assist in the visual observation of the area where detonations occurred. (15) Underwater demolition multiple charge—mat weave and obstacle loading VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00234 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 225 National Marine Fisheries Service/NOAA, Commerce § 218.74 exercises—(i) Number of Lookouts and ob servation platform. Two Lookouts (one must be positioned on a small boat and one must be positioned on shore from an elevated platform). If additional platforms are participating in the ac tivity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 700 yd around the intended detonation location. (A) Prior to the initial start of the activity, or 30 min prior to the first detonation, the Lookout positioned on a small boat must observe the mitiga tion zone for floating vegetation and marine mammals; if floating vegeta tion or marine mammals are observed, Navy personnel must delay the start of detonations until the mitigation zone is clear. For 10 min prior to the first detonation, the Lookout positioned on shore must use binoculars to observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must delay the start of detonations. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detona tion location; or the mitigation zone has been clear from any additional sightings for 10 min (as determined by the Navy shore observer). (D) After completion of the activity (for 30 min), the Lookout positioned on a small boat must observe for marine mammals in the vicinity of where deto nations occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established inci dent reporting procedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detona tions occurred. (16) Vessel movement. The mitigation will not be applied if: The vessel’s safe ty is threatened; the vessel is re stricted in its ability to maneuver (e.g., during launching and recovery of air craft or landing craft, during towing activities, when mooring); the vessel is operated autonomously; or when im practicable based on mission require ments (e.g., during Amphibious As sault—Battalion Landing exercise). (i) Number of Lookouts and observation platform. One Lookout must be on the vessel that is underway. (ii) Mitigation zone and requirements. (A) 500 yd around whales. (B) 200 yd around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port struc tures, and vessels). (iii) During the activity. When under way Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. (iv) Incident reporting procedures. If a marine mammal vessel strike occurs, Navy personnel must follow the estab lished incident reporting procedures. (17) Towed in-water devices. Mitiga tion applies to devices that are towed from a manned surface platform or manned aircraft. The mitigation will not be applied if the safety of the tow ing platform or in-water device is threatened. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on a manned towing platform. (ii) Mitigation zone and requirements. 250 yd around marine mammals. (iii) During the activity. During the activity (i.e., when towing an in-water device), Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00235 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 226 50 CFR Ch. II (10–1–22 Edition) § 218.74 (18) Small-, medium-, and large-caliber non-explosive practice munitions. Mitiga tion applies to activities using a sur face target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described for ‘‘Weapons firing noise’’ in paragraph (a)(5)(i) of this sec tion. (ii) Mitigation zone and requirements. 200 yd around the intended impact lo cation. (A) Prior to the start of the activity (e.g., when maneuvering on station), Navy personnel must observe the miti gation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear. Navy personnel also must ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (19) Non-explosive missiles and rockets. Aircraft-deployed non-explosive mis siles and rockets. Mitigation applies to activities using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. 900 yd around the intended impact lo cation. (A) Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for float ing vegetation; if floating vegetation is observed, Navy personnel must relo cate or delay the start of firing until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of firing. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (20) Non-explosive bombs and mine shapes. Non-explosive bombs and non explosive mine shapes during mine lay ing activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. 1,000 yd around the intended target. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00236 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 227 National Marine Fisheries Service/NOAA, Commerce § 218.74 (A) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for floating vegeta tion; if floating vegetation is observed, Navy personnel must relocate or delay the start of bomb deployment or mine laying until the mitigation zone is clear. Navy personnel also must ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of bomb deployment or mine laying. (B) During the activity (e.g., during approach of the target or intended minefield location), Navy personnel must observe the mitigation zone for marine mammals and, if marine mam mals are observed, Navy personnel must cease bomb deployment or mine laying. (C) Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing bomb deployment or mine laying) until one of the following con ditions has been met: The animal is ob served exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determina tion of its course, speed, and movement relative to the intended target or mine field location; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended tar get has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (b) Mitigation areas. In addition to procedural mitigation, Navy personnel must implement mitigation measures within mitigation areas to avoid or re duce potential impacts on marine mammals. (1) Mitigation areas for marine mam mals in the Hawaii Range Complex for sonar, explosives, and vessel strikes—(i) Mitigation area requirements—(A) Hawaii Island Mitigation Area (year-round)—(1) Except as provided in paragraph (b)(1)(i)(A)(2) of this section, Navy per sonnel must not conduct more than 300 hours of MF1 surface ship hull-mount ed mid-frequency active sonar or 20 hours of MF4 dipping sonar annually, or use explosives that could potentially result in takes of marine mammals during training and testing. (2) Should national security require conduct of more than 300 hours of MF1 surface ship hull-mounted mid-fre quency active sonar or 20 hours of MF4 dipping sonar, or use of explosives that could potentially result in the take of marine mammals during training or testing, Naval units must obtain per mission from the appropriate des ignated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with ad vance notification and include the in formation (e.g., sonar hours or explo sives usage) in its annual activity re ports submitted to NMFS. (B) 4-Islands Region Mitigation Area (November 15–April 15 for active sonar; year-round for explosives)—(1) Except as provided in paragraph (b)(1)(i)(B)(2) of this section, Navy personnel must not use MF1 surface ship hull-mounted mid-frequency active sonar or explo sives that could potentially result in takes of marine mammals during training and testing. (2) Should national security require use of MF1 surface ship hull-mounted mid-frequency active sonar or explo sives that could potentially result in the take of marine mammals during training or testing, Naval units must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include the information (e.g., sonar hours or explosives usage) in its annual activity reports submitted to NMFS. (C) Humpback Whale Special Reporting Areas (December 15–April 15). Navy per sonnel must report the total hours of surface ship hull-mounted mid-fre quency active sonar used in the special reporting areas in its annual training and testing activity reports submitted to NMFS. (D) Humpback Whale Awareness Notifi cation Message Area (November–April). (1) Navy personnel must issue a seasonal awareness notification message to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00237 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 228 50 CFR Ch. II (10–1–22 Edition) § 218.74 alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, includ ing humpback whales. (2) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct vessels to remain vigi lant to the presence of large whale spe cies (including humpback whales). (3) Platforms must use the informa tion from the awareness notification message to assist their visual observa tion of applicable mitigation zones dur ing training and testing activities and to aid in the implementation of proce dural mitigation. (ii) [Reserved] (2) Mitigation areas for marine mam mals in the Southern California portion of the study area for sonar, explosives, and vessel strikes—(i) Mitigation area require ments—(A) San Diego Arc, San Nicolas Is land, and Santa Monica/Long Beach Mitigation Areas (June 1–October 31). (1) Except as provided in paragraph (b)(2)(i)(A)(2) of this section, Navy per sonnel must not conduct more than a total of 200 hours of MF1 surface ship hull-mounted mid-frequency active sonar in the combined areas, excluding normal maintenance and systems checks, during training and testing. (2) Should national security require conduct of more than 200 hours of MF1 surface ship hull-mounted mid-fre quency active sonar in the combined areas during training and testing (ex cluding normal maintenance and sys tems checks), Naval units must obtain permission from the appropriate des ignated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with ad vance notification and include the in formation (e.g., sonar hours) in its an nual activity reports submitted to NMFS. (3) Except as provided in paragraph (b)(2)(i)(A)(4) of this section, within the San Diego Arc Mitigation Area, Navy personnel must not use explosives that could potentially result in the take of marine mammals during large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training and testing. (4) Should national security require use of explosives that could potentially result in the take of marine mammals during large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during training or testing within the San Diego Arc Mitigation Area, Naval units must ob tain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include the information (e.g., explosives usage) in its annual activity reports sub mitted to NMFS. (5) Except as provided in paragraph (b)(2)(i)(A)(6) of this section, within the San Nicolas Island Mitigation Area, Navy personnel must not use explo sives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (includ ing 2.75-inch rockets) activities during training. (6) Should national security require use of explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gun nery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training in the San Nicolas Is land Mitigation Area, Naval units must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include the information (e.g., explosives usage) in its annual activity reports sub mitted to NMFS. (7) Except as provided in paragraph (b)(2)(i)(A)(8) of this section, within the Santa Monica/Long Beach Mitigation Area, Navy personnel must not use ex plosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (includ ing 2.75-inch rockets) activities during training and testing. (8) Should national security require use of explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gun nery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training or testing in the Santa Monica/Long Beach Mitigation Area, Naval units must obtain permission VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00238 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 229 National Marine Fisheries Service/NOAA, Commerce § 218.75 from the appropriate designated Com mand authority prior to commence ment of the activity. Navy personnel must provide NMFS with advance noti fication and include the information (e.g., explosives usage) in its annual ac tivity reports submitted to NMFS. (B) Santa Barbara Island Mitigation Area (year-round). (1) Except as pro vided in paragraph (b)(2)(i)(B)(2) of this section, Navy personnel must not use MF1 surface ship hull-mounted mid frequency active sonar during training or testing, or explosives that could po tentially result in the take of marine mammals during medium-caliber or large-caliber gunnery, torpedo, bomb ing, and missile (including 2.75-inch rockets) activities during training. (2) Should national security require use of MF1 surface ship hull-mounted mid-frequency active sonar during training or testing, or explosives that could potentially result in the take of marine mammals during medium-cal iber or large-caliber gunnery, torpedo, bombing, and missile (including 2.75 inch rockets) activities during train ing, Naval units must obtain permis sion from the appropriate designated Command authority prior to com mencement of the activity. Navy per sonnel must provide NMFS with ad vance notification and include the in formation (e.g., sonar hours or explo sives usage) in its annual activity re ports submitted to NMFS. (C) Blue Whale (June–October), Gray Whale (November–March), and Fin Whale (November–May) Awareness Notification Message Areas. (1) Navy personnel must issue a seasonal awareness notification message to alert ships and aircraft op erating in the area to the possible pres ence of concentrations of large whales, including blue whales, gray whales, and fin whales. (2) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct vessels to remain vigi lant to the presence of large whale spe cies. (3) Platforms must use the informa tion from the awareness notification messages to assist their visual observa tion of applicable mitigation zones dur ing training and testing activities and to aid in the implementation of proce dural mitigation. (ii) [Reserved] § 218.75 Requirements for monitoring and reporting. (a) Unauthorized take. Navy personnel must notify NMFS immediately (or as soon as operational security consider ations allow) if the specified activity identified in § 218.70 is thought to have resulted in the mortality or serious in jury of any marine mammals, or in any Level A harassment or Level B harass ment take of marine mammals not identified in this subpart. (b) Monitoring and reporting under the LOAs. The Navy must conduct all mon itoring and reporting required under the LOAs, including abiding by the HSTT Study Area monitoring program. Details on program goals, objectives, project selection process, and current projects are available at www.navymarinespeciesmonitoring.us. (c) Notification of injured, live strand ed, or dead marine mammals. The Navy must consult the Notification and Re porting Plan, which sets out notifica tion, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected. The No tification and Reporting Plan is avail able at www.fisheries.noaa.gov/national/ marine-mammal-protection/incidentaltake authorizations-military-readinessactivi ties. (d) Annual HSTT Study Area marine species monitoring report. The Navy must submit an annual report of the HSTT Study Area monitoring describ ing the implementation and results from the previous calendar year. Data collection methods must be standard ized across range complexes and study areas to allow for comparison in dif ferent geographic locations. The report must be submitted to the Director, Of fice of Protected Resources, NMFS, ei ther within three months after the end of the calendar year, or within three months after the conclusion of the monitoring year, to be determined by the Adaptive Management process. This report will describe progress of knowledge made with respect to inter mediate scientific objectives within the HSTT Study Area associated with VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00239 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 230 50 CFR Ch. II (10–1–22 Edition) § 218.75 the Integrated Comprehensive Moni toring Program (ICMP). Similar study questions must be treated together so that progress on each topic can be sum marized across all Navy ranges. The re port need not include analyses and con tent that does not provide direct as sessment of cumulative progress on the monitoring plan study questions. As an alternative, the Navy may submit a multi-Range Complex annual Moni toring Plan report to fulfill this re quirement. Such a report will describe progress of knowledge made with re spect to monitoring study questions across multiple Navy ranges associated with the ICMP. Similar study ques tions must be treated together so that progress on each topic can be summa rized across multiple Navy ranges. The report need not include analyses and content that does not provide direct as sessment of cumulative progress on the monitoring study question. This will continue to allow the Navy to provide a cohesive monitoring report covering multiple ranges (as per ICMP goals), rather than entirely separate reports for the HSTT, Gulf of Alaska, Mariana Islands, and Northwest Study Areas. (e) Annual HSTT Study Area training exercise report and testing activity report. Each year, the Navy must submit two preliminary reports (Quick Look Re port) detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. Each year, the Navy must submit detailed reports to the Director, Office of Pro tected Resources, NMFS, within 3 months after the one-year anniversary of the date of issuance of the LOA. The HSTT annual Training Exercise Report and Testing Activity Report can be consolidated with other exercise re ports from other range complexes in the Pacific Ocean for a single Pacific Exercise Report, if desired. The annual reports must contain information on major training exercises (MTEs), Sink ing Exercise (SINKEX) events, and a summary of all sound sources used, in cluding within specific mitigation re porting areas as described in paragraph (e)(3) of this section. The analysis in the detailed reports must be based on the accumulation of data from the cur rent year’s report and data collected from previous reports. The detailed re ports must contain information identi fied in paragraphs (e)(1) through (7) of this section. (1) MTEs. This section of the report must contain the following informa tion for MTEs conducted in the HSTT Study Area. (i) Exercise Information for each MTE. (A) Exercise designator. (B) Date that exercise began and ended. (C) Location. (D) Number and types of active sonar sources used in the exercise. (E) Number and types of passive acoustic sources used in exercise. (F) Number and types of vessels, air craft, and other platforms partici pating in exercise. (G) Total hours of all active sonar source operation. (H) Total hours of each active sonar source bin. (I) Wave height (high, low, and aver age) during exercise. (ii) Individual marine mammal sight ing information for each sighting in each exercise where mitigation was im plemented. (A) Date/Time/Location of sighting. (B) Species (if not possible, indica tion of whale/dolphin/pinniped). (C) Number of individuals. (D) Initial Detection Sensor (e.g., sonar, Lookout). (E) Indication of specific type of plat form observation was made from (in cluding, for example, what type of sur face vessel or testing platform). (F) Length of time observers main tained visual contact with marine mammal. (G) Sea state. (H) Visibility. (I) Sound source in use at the time of sighting. (J) Indication of whether animal was less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd from sonar source. (K) Whether operation of sonar sen sor was delayed, or sonar was powered or shut down, and how long the delay. (L) If source in use was hull-mount ed, true bearing of animal from the vessel, true direction of vessel’s travel, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00240 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 231 National Marine Fisheries Service/NOAA, Commerce § 218.75 and estimation of animal’s motion rel ative to vessel (opening, closing, par allel). (M) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming, etc.) and if any calves were present. (iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be ex posed. This evaluation must identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitiga tion. (2) SINKEXs. This section of the re port must include the following infor mation for each SINKEX completed that year. (i) Exercise information gathered for each SINKEX. (A) Location. (B) Date and time exercise began and ended. (C) Total hours of observation by Lookouts before, during, and after ex ercise. (D) Total number and types of explo sive source bins detonated. (E) Number and types of passive acoustic sources used in exercise. (F) Total hours of passive acoustic search time. (G) Number and types of vessels, air craft, and other platforms, partici pating in exercise. (H) Wave height in feet (high, low, and average) during exercise. (I) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illus trating how marine mammal detection was conducted. (ii) Individual marine mammal obser vation (by Navy Lookouts) information for each sighting where mitigation was implemented. (A) Date/Time/Location of sighting. (B) Species (if not possible, indicate whale, dolphin, or pinniped). (C) Number of individuals. (D) Initial detection sensor (e.g., sonar or Lookout). (E) Length of time observers main tained visual contact with marine mammal. (F) Sea state. (G) Visibility. (H) Whether sighting was before, dur ing, or after detonations/exercise, and how many minutes before or after. (I) Distance of marine mammal from actual detonations (or target spot if not yet detonated): Less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd. (J) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming etc.), including speed and di rection and if any calves were present. (K) The report must indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long. (L) If observation occurred while ex plosives were detonating in the water, indicate munition type in use at time of marine mammal detection. (3) Summary of sources used. This sec tion of the report must include the fol lowing information summarized from the authorized sound sources used in all training and testing events: (i) Total annual hours or quantity (per the LOA) of each bin of sonar or other acoustic sources (e.g., pile driv ing and air gun activities); and (ii) Total annual expended/detonated ordinance (missiles, bombs, sonobuoys, etc.) for each explosive bin. (4) Humpback Whale Special Reporting Area (December 15–April 15). The Navy must report the total hours of oper ation of surface ship hull-mounted mid-frequency active sonar used in the special reporting area. (5) HSTT Study Area Mitigation Areas. The Navy must report any use that oc curred as specifically described in these areas. Information included in the classified annual reports may be used to inform future adaptive manage ment of activities within the HSTT Study Area. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00241 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 232 50 CFR Ch. II (10–1–22 Edition) § 218.76 (6) Geographic information presen tation. The reports must present an an nual (and seasonal, where practical) de piction of training and testing bin usage (as well as pile driving activities) geographically across the HSTT Study Area. (7) Sonar exercise notification. The Navy must submit to NMFS (contact as specified in the LOA) an electronic report within fifteen calendar days after the completion of any MTE indi cating: (i) Location of the exercise; (ii) Beginning and end dates of the exercise; and (iii) Type of exercise. (f) Seven-year close-out comprehensive training and testing activity report. This report must be included as part of the 2025 annual training and testing report. This report must provide the annual totals for each sound source bin with a comparison to the annual allowance and the seven-year total for each sound source bin with a comparison to the seven-year allowance. Additionally, if there were any changes to the sound source allowance, this report must in clude a discussion of why the change was made and include the analysis to support how the change did or did not affect the analysis in the 2018 HSTT FEIS/OEIS and MMPA final rule. The draft report must be submitted within three months after the expiration of this subpart to the Director, Office of Protected Resources, NMFS. NMFS must submit comments on the draft close-out report, if any, within three months of receipt. The report will be considered final after the Navy has ad dressed NMFS’ comments, or 3 months after the submittal of the draft if NMFS does not provide comments. § 218.76 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain LOAs in accordance with § 216.106 of this chapter. (b) LOAs, unless suspended or re voked, may be effective for a period of time not to exceed December 20, 2025. (c) If an LOA expires prior to Decem ber 20, 2025, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision of § 218.77(c)(1)) re quired by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as de scribed in § 218.77. (e) Each LOA must set forth: (1) Permissible methods of incidental taking; (2) Geographic areas for incidental taking; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species or stocks of marine mammals and their habitat; and (4) Requirements for monitoring and reporting. (f) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the find ings made for the total taking allow able under the regulations in this sub part. (g) Notice of issuance or denial of the LOA(s) must be published in the FED ERAL REGISTER within 30 days of a de termination. § 218.77 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.76 for the activity identified in § 218.70(c) may be renewed or modified upon request by the appli cant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00242 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 233 National Marine Fisheries Service/NOAA, Commerce § 218.80 the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or stock or years), NMFS may publish a notice of planned LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.76 may be modified by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.76, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within 30 days of the action. §§ 218.78–218.79 [Reserved] Subpart I—Taking and Importing Marine Mammals; U.S. Navy’s Atlantic Fleet Training and Testing (AFTT) SOURCE: 84 FR 70781, Dec. 23, 2019, unless otherwise noted. EFFECTIVE DATE NOTE: At 84 FR 70781, Dec. 23. 2019, subpart I was revised, effective Dec. 23, 2019, to Nov. 13, 2025 § 218.80 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to the activities listed in paragraph (c) of this section. (b) The taking of marine mammals by the Navy under this subpart may be authorized in Letters of Authorization (LOAs) only if it occurs within the At lantic Fleet Training and Testing (AFTT) Study Area, which includes areas of the western Atlantic Ocean along the East Coast of North America, portions of the Caribbean Sea, and the Gulf of Mexico. The AFTT Study Area begins at the mean high tide line along the U.S. East Coast and extends east to the 45-degree west longitude line, north to the 65-degree north latitude line, and south to approximately the 20-de gree north latitude line. The AFTT Study Area also includes Navy pierside locations, bays, harbors, and inland waterways, and civilian ports where training and testing occurs. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy conducting training and testing activities, includ ing: (1) Training. (i) Amphibious warfare; (ii) Anti-submarine warfare; (iii) Electronic warfare; (iv) Expeditionary warfare; (v) Mine warfare; (vi) Surface warfare, and (vii) Pile driving. (2) Testing. (i) Naval Air Systems Command Testing Activities; (ii) Naval Sea System Command Testing Activities; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00243 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 234 50 CFR Ch. II (10–1–22 Edition) § 218.81 (iii) Office of Naval Research Testing Activities. § 218.81 Effective dates. Regulations in this subpart are effec tive from December 23, 2019 through November 13, 2025. § 218.82 Permissible methods of tak ing. (a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.86, the Holder of the LOAs (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.80(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives as well as serious injury or mortality associated with ship shock trials and vessel strikes, pro vided the activity is in compliance with all terms, conditions, and require ments of this subpart and the applica ble LOAs. (b) The incidental take of marine mammals by the activities listed in § 218.80(c) is limited to the following 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. 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. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00244 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 235 National Marine Fisheries Service/NOAA, Commerce § 218.83 TABLE 1 TO § 218.82—Continued Species Stock 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. 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. Notwithstanding incidental takings contemplated in § 218.82(a) and author ized by LOAs issued under §§ 216.106 of this chapter and 218.86, no person in connection with the activities listed in § 218.80(c) may: (a) Violate, or fail to comply with the terms, conditions, and requirements of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.86; (b) Take any marine mammal not specified in § 218.82(b); (c) Take any marine mammal speci fied § 218.82(b) in any manner other than as specified in the LOAs; or (d) Take a marine mammal specified § 218.82(b) if the National Marine Fish eries Service (NMFS) determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00245 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 236 50 CFR Ch. II (10–1–22 Edition) § 218.84 § 218.84 Mitigation requirements. When conducting the activities iden tified in § 218.80(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 218.86 must be implemented. These mitigation measures include, but are not limited to: (a) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wher ever an applicable training or testing activity takes place within the AFTT Study Area for each applicable activity category or stressor category and in cludes acoustic stressors (i.e., active sonar, air guns, pile driving, weapons firing noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber projectiles, missiles and rockets, bombs, sinking exercises, mines, anti-swimmer grenades, line charge testing and ship shock trials), and physical disturbance and strike stressors (i.e., vessel movement; towed in-water devices; small-, medium-, and large-caliber non-explosive practice munitions; non-explosive missiles and rockets; non-explosive bombs and mine shapes). (1) Environmental awareness and edu cation. Appropriate personnel (includ ing civilian personnel) involved in mitigation and training or testing ac tivity reporting under the specified ac tivities must complete one or more modules of the U.S. Navy Afloat Envi ronmental Compliance Training Series, as identified in their career path train ing plan. Modules include: Introduction to the U.S. Navy Afloat Environmental Compliance Training Series, Marine Species Awareness Training, U.S. Navy Protective Measures Assessment Pro tocol, and U.S. Navy Sonar Positional Reporting System and Marine Mammal Incident Reporting. (2) Active sonar. Active sonar includes low-frequency active sonar, mid-fre quency active sonar, and high-fre quency active sonar. For vessel-based active sonar activities, mitigation ap plies only to sources that are posi tively controlled and deployed from manned surface vessels (e.g., sonar sources towed from manned surface platforms). For aircraft-based active sonar activities, mitigation applies only to sources that are positively con trolled and deployed from manned air craft that do not operate at high alti tudes (e.g., rotary-wing aircraft). Miti gation does not apply to active sonar sources deployed from unmanned air craft or aircraft operating at high alti tudes (e.g., maritime patrol aircraft). (i) Number of Lookouts and observation platform—(A) Hull-mounted sources. One Lookout for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at anchor (including pierside); two Lookouts for platforms without space or manning restrictions while underway (at the forward part of the ship); and four Lookouts for pierside sonar testing activities at Port Canaveral, Florida and Kings Bay, Georgia. (B) Sources that are not hull-mounted sources. One Lookout on the ship or air craft conducting the activity. (ii) Mitigation zones and requirements. During the activity, at 1,000 yard (yd) Navy personnel must power down 6 decibels (dB), at 500 yd Navy personnel must power down an additional 4 dB (for a total of 10 dB), and at 200 yd Navy personnel must shut down for low-frequency active sonar ≥200 dB and hull-mounted mid-frequency active sonar; or at 200 yd Navy personnel must shut down for low-frequency ac tive sonar <200 dB, mid-frequency ac tive sonar sources that are not hull mounted, and high-frequency active sonar. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of active sonar trans mission. (B) During low-frequency active sonar at or above 200 dB and hull mounted mid-frequency active sonar, Navy personnel must observe the miti gation zone for marine mammals and power down active sonar transmission VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00246 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 237 National Marine Fisheries Service/NOAA, Commerce § 218.84 by 6 dB if marine mammals are ob served within 1,000 yd of the sonar source; power down by an additional 4 dB (10 dB total) if marine mammals are observed within 500 yd of the sonar source; and cease transmission if ma rine mammals are observed within 200 yd of the sonar source. (C) During low-frequency active sonar below 200 dB, mid-frequency ac tive sonar sources that are not hull mounted, and high-frequency active sonar, Navy personnel must observe the mitigation zone for marine mam mals and cease active sonar trans mission if marine mammals are ob served within 200 yd of the sonar source. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity: Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing or powering up active sonar transmission) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; the mitigation zone has been clear from any additional sightings for 10 minutes (min) for aircraft-deployed sonar sources or 30 min for vessel-de ployed sonar sources; for mobile activi ties, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or for activities using hull-mounted sonar where a dolphin(s) is observed in the mitigation zone, the Lookout con cludes that the dolphin(s) is delib erately closing in on the ship to ride the ship’s bow wave, and is therefore out of the main transmission axis of the sonar (and there are no other ma rine mammal sightings within the mitigation zone). (3) Air guns—(i) Number of Lookouts and observation platform. One Lookout must be positioned on a ship or pierside. (ii) Mitigation zone and requirements. 150 yd around the air gun. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of air gun use. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease use of air guns. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing air gun use) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the air gun; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile activities, the air gun has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (4) Pile driving. Pile driving and pile extraction sound during Elevated Causeway System training. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the shore, the elevated cause way, or a small boat. (ii) Mitigation zone and requirements. 100 yd around the pile driver. (A) Prior to the initial start of the activity (for 30 min), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegeta tion is observed, Navy personnel must delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must delay the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00247 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 238 50 CFR Ch. II (10–1–22 Edition) § 218.84 start of pile driving or vibratory pile extraction. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease impact pile driving or vi bratory pile extraction. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing pile driving or pile extraction) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the pile driving location; or the mitigation zone has been clear from any additional sightings for 30 min. (5) Weapons firing noise. Weapons fir ing noise associated with large-caliber gunnery activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the ship conducting the fir ing. Depending on the activity, the Lookout could be the same as the one provided for under explosive medium caliber and large-caliber projectiles or under small-, medium-, and large-cal iber non-explosive practice munitions in paragraphs (a)(8)(i) and (a)(19)(i) of this section. (ii) Mitigation zone and requirements. Thirty degrees on either side of the fir ing line out to 70 yd from the muzzle of the weapon being fired. (A) Prior to the initial start of the activity, Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of weapons firing. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease weapons firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing weapons firing) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile ac tivities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the loca tion of the last sighting. (6) Explosive sonobuoys—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft or on small boat. If additional platforms are participating in the ac tivity, personnel positioned in those assets (e.g., safety observers, eval uators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. 600 yd around an explosive sonobuoy. (A) Prior to the initial start of the activity (e.g., during deployment of a sonobuoy field, which typically lasts 20–30 min), Navy personnel must ob serve the mitigation zone for floating vegetation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel must con duct passive acoustic monitoring for marine mammals and use information from detections to assist visual obser vations. Navy personnel also must vis ually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must re locate or delay the start of sonobuoy or source/receiver pair detonations. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00248 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 239 National Marine Fisheries Service/NOAA, Commerce § 218.84 mammals are observed, Navy personnel must cease sonobuoy or source/receiver pair detonations. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sono buoy; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves air craft that have fuel constraints (e.g., helicopter), or 30 min when the activity involves aircraft that are not typically fuel constrained. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (7) Explosive torpedoes—(i) Number of Lookouts and observation platform. One Lookout positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel posi tioned in those assets (e.g., safety ob servers, evaluators) must support ob serving the mitigation zone for marine mammals and other applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 2,100 yd around the intended impact lo cation. (A) Prior to the initial start of the activity (e.g., during deployment of the target), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, relocate or delay the start until the mitigation zone is clear. Navy per sonnel also must conduct passive acoustic monitoring for marine mam mals and use the information from de tections to assist visual observations. Navy personnel must visually observe the mitigation zone for marine mam mals and jellyfish aggregations; if ma rine mammals or jellyfish aggregations are observed, Navy personnel must re locate or delay the start of firing. (B) During the activity, Navy per sonnel must observe for marine mam mals and jellyfish aggregations; if ma rine mammals or jellyfish aggregations are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (8) Explosive medium-caliber and large caliber projectiles. Gunnery activities VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00249 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 240 50 CFR Ch. II (10–1–22 Edition) § 218.84 using explosive medium-caliber and large-caliber projectiles. Mitigation ap plies to activities using a surface tar get. (i) Number of Lookouts and observation platform. One Lookout must be on the vessel or aircraft conducting the activ ity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described for weapons firing noise in paragraph (a)(5)(i) of this section. If additional platforms are participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 200 yd around the intended impact location for air-to-surface activities using explosive medium-caliber projec tiles. (B) 600 yd around the intended im pact location for surface-to-surface ac tivities using explosive medium-caliber projectiles. (C) 1,000 yd around the intended im pact location for surface-to-surface ac tivities using explosive large-caliber projectiles. (D) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (E) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (F) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (G) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (9) Explosive missiles and rockets. Air craft-deployed explosive missiles and rockets. Mitigation applies to activi ties using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. If additional plat forms are participating in the activity, Navy personnel positioned in those as sets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 900 yd around the intended impact location for missiles or rockets with 0.6–20 lb net explosive weight. (B) 2,000 yd around the intended im pact location for missiles with 21–500 lb net explosive weight. (C) Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for float ing vegetation; if floating vegetation is observed, Navy personnel must relo cate or delay the start until the miti gation zone is clear. Navy personnel VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00250 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 241 National Marine Fisheries Service/NOAA, Commerce § 218.84 also must observe the mitigation zone for marine mammals; if marine mam mals are observed, Navy personnel must relocate or delay the start of fir ing. (D) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (10) Explosive bombs—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. 2,500 yd around the intended target. (A) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for floating vegeta tion; if floating vegetation is observed, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of bomb deployment. (B) During the activity (e.g., during target approach), Navy personnel must observe for marine mammals; if marine mammals are observed, Navy personnel must cease bomb deployment. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing bomb deployment) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; the mitigation zone has been clear from any addi tional sightings for 10 min; or for ac tivities using mobile targets, the in tended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00251 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 242 50 CFR Ch. II (10–1–22 Edition) § 218.84 (11) Sinking exercises—(i) Number of Lookouts and observation platform. Two Lookouts (one must be positioned in an aircraft and one must be positioned on a vessel). If additional platforms are participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. 2.5 nautical miles (nmi) around the tar get ship hulk. (A) Prior to the initial start of the activity (90 min prior to the first fir ing), Navy personnel must conduct aer ial observations of the mitigation zone for floating vegetation; if floating vegetation is observed Navy personnel must delay the start until the mitiga tion zone is clear. Navy personnel also must conduct aerial observations of the mitigation zone for marine mam mals and jellyfish aggregations; if ma rine mammals or jellyfish aggregations are observed, Navy personnel must delay the start of firing. (B) During the activity, Navy per sonnel must conduct passive acoustic monitoring for marine mammals and use information from detections to as sist visual observations. Navy per sonnel must visually observe the miti gation zone for marine mammals from the vessel; if marine mammals are ob served, Navy personnel must cease fir ing. Immediately after any planned or unplanned breaks in weapons firing of longer than two hours, Navy personnel must observe the mitigation zone for marine mammals from the aircraft and vessel; if marine mammals are ob served, Navy personnel must delay re commencement of firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the target ship hulk; or the mitigation zone has been clear from any additional sightings for 30 min. (D) After completion of the activity (for two hours after sinking the vessel or until sunset, whichever comes first), Navy personnel must observe for ma rine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident reporting procedures. If addi tional platforms are supporting this ac tivity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (12) Explosive mine countermeasure and neutralization activities—(i) Number of Lookouts and observation platform. (A) One Lookout must be positioned on a vessel or in an aircraft when imple menting the smaller mitigation zone defined at paragraph (a)(12)(ii)(A) of this section (using 0.1–5 lb net explo sive weight charges). (B) Two Lookouts (one must be in an aircraft and one must be on a small boat) when implementing the larger mitigation zone defined at paragraph (a)(12)(ii)(B) of this section (using 6–650 lb net explosive weight charges). (C) If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 600 yd around the detonation site for activities using 0.1–5 lb net explo sive weight. (B) 2,100 yd around the detonation site for activities using 6–650 lb net ex plosive weight (including high explo sive target mines). (C) Prior to the initial start of the activity (e.g., when maneuvering on station; typically, 10 min when the ac tivity involves aircraft that have fuel constraints, or 30 min when the activ ity involves aircraft that are not typi cally fuel constrained), Navy personnel must observe the mitigation zone for VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00252 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 243 National Marine Fisheries Service/NOAA, Commerce § 218.84 floating vegetation; if floating vegeta tion is observed, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of detonations. (D) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, the Navy must cease detonations. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to detonation site; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves air craft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After completion of the activity (typically 10 min when the activity in volves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained), Navy personnel must observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (13) Explosive mine neutralization ac tivities involving navy divers—(i) Number of Lookouts and observation platform. (A) Two Lookouts must be positioned (two small boats with one Lookout each, or one Lookout must be on a small boat and one must be in a rotary-wing air craft) when implementing the smaller mitigation zone defined at paragraph (a)(13)(ii)(A) of this section. (B) Four Lookouts must be posi tioned (two small boats with two Look outs each), and a pilot or member of an aircrew must serve as an additional Lookout if aircraft are used during the activity, when implementing the larger mitigation zone defined at paragraph (a)(13)(ii)(B) of this section. (C) All divers placing the charges on mines must support the Lookouts while performing their regular duties and must report applicable sightings to their supporting small boat or Range Safety Officer. (D) If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) 500 yd around the detonation site during activities under positive control using 0.1–20 lb net explosive weight. (B) 1,000 yd around the detonation site during all activities using time delay fuses (0.1–20 lb net explosive weight) and during activities under positive control using 21–60 lb net ex plosive weight charges. (C) Prior to the initial start of the activity (e.g., when maneuvering on station for activities under positive control; 30 min for activities using time-delay firing devices), Navy per sonnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy per sonnel also must observe the mitiga tion zone for marine mammals; if ma rine mammals are observed, Navy per sonnel must relocate or delay the start of detonation or fuse initiation. (D) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease detonation or fuse initiation. To the maximum ex tent practicable depending on mission requirements, safety, and environ mental conditions, boats must position themselves near the mid-point of the mitigation zone radius (but outside of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00253 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 244 50 CFR Ch. II (10–1–22 Edition) § 218.84 the detonation plume and human safe ty zone), must position themselves on opposite sides of the detonation loca tion (when two boats are used), and must travel in a circular pattern around the detonation location with one Lookout observing inward toward the detonation site and the other ob serving outward toward the perimeter of the mitigation zone. If used, aircraft must travel in a circular pattern around the detonation location to the maximum extent practicable. Navy personnel must not set time-delay fir ing devices (0.1–20 lb. net explosive weight) to exceed 10 min. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detona tion site; or the mitigation zone has been clear from any additional sightings for 10 min during activities under positive control with aircraft that have fuel constraints, or 30 min during activities under positive control with aircraft that are not typically fuel constrained and during activities using time-delay firing devices. (F) After completion of an activity (for 30 min), Navy personnel must ob serve for marine mammals in the vicin ity of where any detonations have oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual obser vation of the area where detonations occurred. (14) Maritime security operations—anti swimmer grenades—(i) Number of Look outs and observation platform. One Look out must be positioned on the small boat conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. 200 yd around the intended detonation location. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of detonation. (B) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease detonation. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; the mitigation zone has been clear from any addi tional sightings for 30 min; or the in tended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00254 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 245 National Marine Fisheries Service/NOAA, Commerce § 218.84 where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (15) Line charge testing—(i) Number of Lookouts and observation platform. One Lookout must be positioned on a ves sel. If additional platforms are partici pating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support ob serving the mitigation zone for marine mammals and other applicable biologi cal resources while performing their regular duties. (ii) Mitigation zone and requirements. 900 yd around the intended detonation location. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must delay the start of deto nations. (B) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease detona tions. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; or the mitigation zone has been clear from any addi tional sightings for 30 min. (D) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (16) Ship shock trials—(i) Number of Lookouts and observation platform. (A) A minimum of ten Lookouts or trained marine species observers (or a com bination thereof) must be positioned either in an aircraft or on multiple ves sels (i.e., a Marine Animal Response Team boat and the test ship). (1) If aircraft are used, Lookouts or trained marine species observers must be in an aircraft and on multiple ves sels. (2) If aircraft are not used, a suffi cient number of additional Lookouts or trained marine species observers must be used to provide vessel-based visual observation comparable to that achieved by aerial surveys. (B) If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. 3.5 nmi around the ship hull. (A) The Navy must not conduct ship shock trials in the Jacksonville Oper ating Area during North Atlantic right whale calving season from November 15 through April 15. (B) The Navy must develop detailed ship shock trial monitoring and miti gation plans approximately one-year prior to an event and must continue to provide these to NMFS for review and approval. (C) Pre-activity planning must in clude selection of one primary and two secondary areas where marine mammal VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00255 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 246 50 CFR Ch. II (10–1–22 Edition) § 218.84 populations are expected to be the low est during the event, with the primary and secondary locations located more than 2 nmi from the western boundary of the Gulf Stream for events in the Virginia Capes Range Complex or Jacksonville Range Complex. (D) If it is determined during pre-ac tivity surveys that the primary area is environmentally unsuitable (e.g., ob servations of marine mammals or pres ence of concentrations of floating vege tation), the shock trial can be moved to a secondary site in accordance with the detailed mitigation and monitoring plan provided to NMFS. (E) Prior to the initial start of the activity at the shock trial location (in intervals of 5 hrs, 3 hrs, 40 min, and im mediately before the detonation), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must delay the start until the mitiga tion zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must delay triggering the detonation. (F) During the activity, Navy per sonnel must observe for marine mam mals, large schools of fish, jellyfish ag gregations, and flocks of seabirds; if marine mammals, large schools of fish, jellyfish aggregations, and flocks of seabirds are observed, Navy personnel must cease triggering the detonation. After completion of each detonation, Navy personnel must observe the miti gation zone for marine mammals; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures and halt any remaining deto nations until Navy personnel can con sult with NMFS and review or adapt the mitigation, if necessary. (G) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity: Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the ship hull; or the mitigation zone has been clear from any additional sightings for 30 min. (H) After completion of the activity (during the following two days at a minimum, and up to seven days at a maximum), Navy personnel must ob serve for marine mammals in the vicin ity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), these Navy assets must assist in the visual observation of the area where detonations occurred. (17) Vessel movement. The mitigation must not be applied if: The vessel’s safety is threatened; the vessel is re stricted in its ability to maneuver (e.g., during launching and recovery of air craft or landing craft, during towing activities, when mooring, etc.); or the vessel is operated autonomously. (i) Number of Lookouts and observation platform. One Lookout must be on the vessel that is underway. (ii) Mitigation zone and requirements. (A) 500 yd around whales. (B) 200 yd around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port struc tures, and vessels). (C) During the activity, when under way, Navy personnel must observe the mitigation zone for marine mammals; if any marine mammals are observed, Navy personnel must maneuver to maintain distance. (D) Additionally, Navy personnel must broadcast awareness notification messages with North Atlantic right whale Dynamic Management Area in formation (e.g., location and dates) to applicable Navy assets operating in the vicinity of the Dynamic Management Area. The information will alert assets to the possible presence of a North At lantic right whale to maintain safety of navigation and further reduce the potential for a vessel strike. Platforms must use the information to assist their visual observation of applicable mitigation zones during training and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00256 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 247 National Marine Fisheries Service/NOAA, Commerce ยง 218.84 testing activities and to aid in the im plementation of procedural mitigation, including but not limited to, mitiga tion for vessel movement. If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures. (18) Towed in-water devices. Mitiga tion applies to devices that are towed from a manned surface platform or manned aircraft. The mitigation will not be applied if the safety of the tow ing platform or in-water device is threatened. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on a manned towing platform. (ii) Mitigation zone and requirements. 250 yd around marine mammals. Dur ing the activity, when towing an in water device, Navy personnel must ob serve for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. (19) Small-, medium-, and large-caliber non-explosive practice munitions. Mitiga tion applies to activities using a sur face target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described for weapons firing noise in paragraph (a)(5)(i) of this section. (ii) Mitigation zone and requirements. 200 yd around the intended impact lo cation. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vege tation; if floating vegetation is ob served, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (B) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (20) Non-explosive missiles and rockets. Aircraft-deployed non-explosive mis siles and rockets. Mitigation applies to activities using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. 900 yd around the intended impact lo cation. (A) Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for float ing vegetation; if floating vegetation is observed, Navy personnel must relo cate or delay the start until the miti gation zone is clear. Navy personnel also must observe the mitigation zone for marine mammals; if marine mam mals are observed, Navy personnel must relocate or delay the start of fir ing. (B) During the activity, Navy per sonnel must observe for marine mam mals; if marine mammals are observed, Navy personnel must cease firing. (C) Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00257 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 248 50 CFR Ch. II (10–1–22 Edition) § 218.84 on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (21) Non-explosive bombs and mine shapes. Non-explosive bombs and non explosive mine shapes during mine lay ing activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. 1,000 yd around the intended target. (A) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for floating vegeta tion; if floating vegetation is observed, Navy personnel must relocate or delay the start until the mitigation zone is clear. Navy personnel also must ob serve the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of bomb deployment or mine laying. (B) During the activity (e.g., during approach of the target or intended minefield location), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease bomb deployment or mine laying. (C) Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity: Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing bomb deployment or mine laying) until one of the following con ditions has been met: The animal is ob served exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determina tion of its course, speed, and movement relative to the intended target or mine field location; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended tar get has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (b) Mitigation areas. In addition to procedural mitigation, the Navy must implement mitigation measures within mitigation areas to avoid potential im pacts on marine mammals. (1) Mitigation areas off the North eastern United States for sonar, explo sives, and physical disturbance and strikes—(i) Mitigation area require ments—(A) Northeast North Atlantic Right Whale Mitigation Area (year round). (1) Navy personnel must report the total hours and counts of active sonar and in-water explosives used in the mitigation area (which includes North Atlantic right whale ESA-des ignated critical habitat) in its annual training and testing activity reports submitted to NMFS. (2) Navy personnel must minimize the use of low-frequency active sonar, mid-frequency active sonar, and high frequency active sonar to the max imum extent practicable within the mitigation area. (3) Navy personnel must not use Im proved Extended Echo Ranging sonobuoys in or within 3 nmi of the mitigation area or use explosive and non-explosive bombs, in-water detona tions, and explosive torpedoes within the mitigation area. (4) For activities using non-explosive torpedoes within the mitigation area, Navy personnel must conduct activi ties during daylight hours in Beaufort sea state 3 or less. The Navy must use three Lookouts (one positioned on a vessel and two positioned in an aircraft during dedicated aerial surveys) to ob serve the vicinity of the activity. An additional Lookout must be positioned on the submarine, when surfaced. Im mediately prior to the start of the ac tivity, Navy personnel must observe for floating vegetation and marine mammals; if floating vegetation or ma rine mammals are observed, Navy per sonnel must not commence the activ ity until the vicinity is clear or the ac tivity is relocated to an area where the vicinity is clear. During the activity, Navy personnel must observe for ma rine mammals; if observed, Navy per sonnel must cease the activity. To allow a sighted marine mammal to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00258 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 249 National Marine Fisheries Service/NOAA, Commerce § 218.84 leave the area, Navy personnel must not recommence the activity until one of the following conditions has been met: The animal is observed exiting the vicinity of the activity; the animal is thought to have exited the vicinity of the activity based on a determina tion of its course, speed, and movement relative to the activity location; or the area has been clear from any additional sightings for 30 min. During transits and normal firing, ships must maintain a speed of no more than 10 knots (kn). During submarine target firing, ships must maintain speeds of no more than 18 kn. During vessel target firing, ves sel speeds may exceed 18 kn for brief periods of time (e.g., 10–15 min). (5) For all activities, before a vessel transits within the mitigation area, Navy personnel must conduct a web query or email inquiry to the National Oceanographic and Atmospheric Ad ministration Northeast Fisheries Science Center’s North Atlantic Right Whale Sighting Advisory System to ob tain the latest North Atlantic right whale sightings information. Navy per sonnel on vessels must use the sightings information to reduce poten tial interactions with North Atlantic right whales during transits. Navy per sonnel on vessels must implement speed reductions within the mitigation area after observing a North Atlantic right whale, if transiting within 5 nmi of a sighting reported to the North At lantic Right Whale Sighting Advisory System within the past week, and if transiting at night or during periods of reduced visibility. (B) Gulf of Maine Planning Awareness Mitigation Area (year-round). (1) Navy personnel must report the total hours and counts of active sonar and in-water explosives used in the mitigation area in its annual training and testing ac tivity reports submitted to NMFS. (2) Navy personnel must not conduct greater than 200 hrs of hull-mounted mid-frequency active sonar per year within the mitigation area. (3) Navy personnel must not conduct major training exercises (Composite Training Unit Exercises or Fleet Exer cises/Sustainment Exercises) within the mitigation area. If the Navy needs to conduct a major training exercise within the mitigation area in support of training requirements driven by na tional security concerns, Navy per sonnel must confer with NMFS to verify that potential impacts are ade quately addressed. (C) Northeast Planning Awareness Miti gation Areas (year-round). (1) Navy per sonnel will avoid planning major train ing exercises (Composite Training Unit Exercises or Fleet Exercises/ Sustainment Exercises) within the mitigation area to the maximum ex tent practicable. (2) Navy personnel must not conduct more than four major training exer cises per year (all or a portion of the exercise) within the mitigation area. (3) If the Navy needs to conduct addi tional major training exercises in the mitigation area in support of training requirements driven by national secu rity concerns, Navy personnel must provide NMFS with advance notifica tion and include the information in its annual training and testing activity re ports submitted to NMFS. (ii) [Reserved] (2) Mitigation areas off the Mid-Atlan tic and Southeastern United States for sonar, explosives, and physical disturb ance and strikes—(i) Mitigation area re quirements—(A) Southeast North Atlantic Right Whale Mitigation Area (November 15 through April 15). (1) Navy personnel must report the total hours and counts of active sonar and in-water explosives used in the mitigation area in its an nual training and testing activity re ports submitted to NMFS. (2) The Navy must not conduct: Low frequency active sonar (except as noted in paragraph (b)(2)(i)(A)(3) of this sec tion), mid-frequency active sonar (ex cept as noted in paragraph (b)(2)(i)(A)(3) of this section), high-fre quency active sonar, missile and rocket activities (explosive and non-explo sive), small-, medium-, and large-cal iber gunnery activities, Improved Ex tended Echo Ranging sonobuoy activi ties, explosive and non-explosive bomb ing activities, in-water detonations, and explosive torpedo activities within the mitigation area. (3) To the maximum extent prac ticable, Navy personnel must minimize the use of: Helicopter dipping sonar, low-frequency active sonar and hull mounted mid-frequency active sonar VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00259 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 250 50 CFR Ch. II (10–1–22 Edition) § 218.84 used for navigation training, and low frequency active sonar and hull-mount ed mid-frequency active sonar used for object detection exercises within the mitigation area. (4) Before transiting or conducting training or testing activities within the mitigation area, Navy personnel must initiate communication with the Fleet Area Control and Surveillance Facility, Jacksonville to obtain Early Warning System North Atlantic right whale sightings data. The Fleet Area Control and Surveillance Facility, Jacksonville must advise Navy per sonnel on vessels of all reported whale sightings in the vicinity to help Navy personnel on vessels and aircraft re duce potential interactions with North Atlantic right whales. Commander Submarine Force U.S. Atlantic Fleet must coordinate any submarine activi ties that may require approval from the Fleet Area Control and Surveil lance Facility, Jacksonville. Navy per sonnel on vessels must use the sightings information to reduce poten tial interactions with North Atlantic right whales during transits. (5) Navy personnel on vessels must implement speed reductions after they observe a North Atlantic right whale, if they are within 5 nmi of a sighting reported within the past 12 hrs, or when operating in the mitigation area at night or during periods of poor visi bility. (6) To the maximum extent prac ticable, Navy personnel on vessels must minimize north-south transits in the mitigation area. (B) Southeast North Atlantic Right Whale Critical Habitat Special Reporting Area (November 15 through April 15). (1) Navy personnel must report the total hours and counts of active sonar and in-water explosives used in the Special Reporting Area (which includes south east North Atlantic right whale ESA designated critical habitat) in its an nual training and testing activity re ports submitted to NMFS. (2) [Reserved] (C) Jacksonville Operating Area (No vember 15 through April 15). (1) Navy units conducting training or testing activities in the Jacksonville Oper ating Area must initiate communica tion with the Fleet Area Control and Surveillance Facility, Jacksonville to obtain Early Warning System North Atlantic right whale sightings data. The Fleet Area Control and Surveil lance Facility, Jacksonville must ad vise Navy personnel on vessels of all re ported whale sightings in the vicinity to help Navy personnel on vessels and aircraft reduce potential interactions with North Atlantic right whales. Com mander Submarine Force U.S. Atlantic Fleet must coordinate any submarine activities that may require approval from the Fleet Area Control and Sur veillance Facility, Jacksonville. Navy personnel must use the reported sightings information as they plan spe cific details of events (e.g., timing, lo cation, duration) to minimize potential interactions with North Atlantic right whales to the maximum extent prac ticable. Navy personnel must use the reported sightings information to as sist visual observations of applicable mitigation zones and to aid in the im plementation of procedural mitigation. (2) [Reserved] (D) Navy Cherry Point Range Complex Nearshore Mitigation Area (March through September). (1) Navy personnel must not conduct explosive mine neu tralization activities involving Navy divers in the mitigation area. (2) To the maximum extent prac ticable, Navy personnel must not use explosive sonobuoys, explosive tor pedoes, explosive medium-caliber and large-caliber projectiles, explosive mis siles and rockets, explosive bombs, ex plosive mines during mine counter measure and neutralization activities, and anti-swimmer grenades in the mitigation area. (E) Mid-Atlantic Planning Awareness Mitigation Areas (year-round). (1) Navy personnel will avoid planning major training exercises (Composite Training Unit Exercises or Fleet Exercises/ Sustainment Exercises) to the max imum extent practicable. (2) Navy personnel must not conduct more than four major training exer cises per year (all or a portion of the exercise) within the mitigation area. (3) If the Navy needs to conduct addi tional major training exercises in the mitigation area in support of training requirements driven by national secu rity concerns, Navy personnel must VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00260 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 251 National Marine Fisheries Service/NOAA, Commerce § 218.85 provide NMFS with advance notifica tion and include the information in its annual training and testing activity re ports submitted to NMFS. (ii) [Reserved] (3) Mitigation areas in the Gulf of Mex ico for sonar and explosives—(i) Mitiga tion area requirements—(A) Gulf of Mex ico Planning Awareness Mitigation Areas (year-round). (1) Navy personnel must not conduct major training exercises within the mitigation area (all or a portion of the exercise). (2) If the Navy needs to conduct a major training exercise within the mitigation areas in support of training requirements driven by national secu rity concerns, Navy personnel must confer with NMFS to verify that poten tial impacts are adequately addressed. (B) Bryde’s Whale Mitigation Area (year-round). (1) Navy personnel must report the total hours and counts of ac tive sonar and in-water explosives used in the mitigation area in its annual training and testing activity reports submitted to NMFS. (2) Navy personnel must not conduct greater than 200 hrs of hull-mounted mid-frequency active sonar per year within the mitigation area. (3) Navy personnel must not use ex plosives (except during mine warfare activities) within the mitigation area. (ii) [Reserved] § 218.85 Requirements for monitoring and reporting. (a) Unauthorized take. The Navy must notify NMFS immediately (or as soon as operational security considerations allow) if the specified activity identi fied in § 218.80 is thought to have re sulted in the mortality or serious in jury of any marine mammals, or in any Level A or Level B harassment take of marine mammals not identified in this subpart. (b) Monitoring and reporting under the LOAs. The Navy must conduct all mon itoring and required reporting under the LOAs, including abiding by the AFTT Study Area monitoring program. Details on program goals, objectives, project selection process, and current projects are available at www.navymarinespeciesmonitoring.us. (c) Notification of injured, live strand ed, or dead marine mammals. The Navy must consult the Notification and Re porting Plan, which sets out notifica tion, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected. The No tification and Reporting Plan is avail able at www.fisheries.noaa.gov/national/ marine-mammal-protection/incidental take-authorizations-military-readiness-ac tivities. (d) Annual AFTT Study Area marine species monitoring report. The Navy must submit an annual report of the AFTT Study Area monitoring describ ing the implementation and results from the previous calendar year. Data collection methods must be standard ized across range complexes and study areas to allow for comparison in dif ferent geographic locations. The report must be submitted to the Director, Of fice of Protected Resources of NMFS either within 90 days after the calendar year, or within 90 days after the con clusion of the monitoring year to be determined by the Adaptive Manage ment process. This report will describe progress of knowledge made with re spect to monitoring plan study ques tions across all Navy ranges associated with the Integrated Comprehensive Monitoring Program. Similar study questions must be treated together so that progress on each topic can be sum marized across all Navy ranges. The re port need not include analyses and con tent that does not provide direct as sessment of cumulative progress on the monitoring plan study questions. (e) Annual AFTT Study Area training and testing reports. Each year, the Navy must submit a preliminary report (Quick Look Report) detailing the sta tus of authorized sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Di rector, Office of Protected Resources, NMFS. Each year, the Navy must sub mit a detailed report within 3 months after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. The annual reports must contain infor mation on major training exercises (MTEs), sinking exercise (SINKEX) events, and a summary of all sound sources used, including within specified VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00261 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 252 50 CFR Ch. II (10–1–22 Edition) § 218.85 mitigation reporting areas, as de scribed in paragraph (e)(3) of this sec tion. The analysis in the detailed re port must be based on the accumula tion of data from the current year’s re port and data collected from the pre vious report. The detailed reports must contain information identified in para graphs (e)(1) through (5) of this section. (1) Major training exercises (MTEs). This section of the report must contain the following information for MTEs conducted in the AFTT Study Area: (i) Exercise information (for each MTE): (A) Exercise designator; (B) Date that exercise began and ended; (C) Location; (D) Number and types of active sonar sources used in the exercise; (E) Number and types of passive acoustic sources used in exercise; (F) Number and types of vessels, air craft, and other platforms partici pating in exercise; (G) Total hours of all active sonar source operation; (H) Total hours of each active sonar source bin; and (I) Wave height (high, low, and aver age) during exercise. (ii) Individual marine mammal sight ing information for each sighting in each exercise where mitigation was im plemented: (A) Date/time/location of sighting; (B) Species (if not possible, indica tion of whale/dolphin/pinniped); (C) Number of individuals; (D) Initial detection sensor (e.g., sonar, Lookout); (E) Indication of specific type of plat form observation made from (includ ing, for example, what type of surface vessel or testing platform); (F) Length of time observers main tained visual contact with marine mammal; (G) Sea state; (H) Visibility; (I) Sound source in use at the time of sighting; (J) Indication of whether animal was less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd from sonar source; (K) Mitigation implementation (e.g. whether operation of sonar sensor was delayed, or sonar was powered or shut down, and how long the delay was); (L) If source in use was hull-mount ed, true bearing of animal from the vessel, true direction of vessel’s travel, and estimation of animal’s motion rel ative to vessel (opening, closing, par allel); and (M) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming, etc.) and if any calves were present. (iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be ex posed. This evaluation must identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitiga tion. (2) Sinking exercises (SINKEXs). This section of the report must include the following information for each SINKEX completed that year: (i) Exercise information (gathered for each SINKEX): (A) Location; (B) Date and time exercise began and ended; (C) Total hours of observation by Lookouts before, during, and after ex ercise; (D) Total number and types of explo sive source bins detonated; (E) Number and types of passive acoustic sources used in exercise; (F) Total hours of passive acoustic search time; (G) Number and types of vessels, air craft, and other platforms partici pating in exercise; (H) Wave height in feet (high, low, and average) during exercise; and (I) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illus trating how marine mammal detection was conducted. (ii) Individual marine mammal sight ing information for each sighting where mitigation was implemented: (A) Date/time/location of sighting; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00262 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 253 National Marine Fisheries Service/NOAA, Commerce § 218.86 (B) Species (if not possible, indicate whale, dolphin, or pinniped); (C) Number of individuals; (D) Initial detection sensor (e.g., sonar or Lookout); (E) Length of time observers main tained visual contact with marine mammal; (F) Sea state; (G) Visibility; and (H) Whether sighting was before, dur ing, or after detonations/exercise, and how many minutes before or after. (I) Distance of marine mammal from actual detonations (e.g. less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd, or target spot if not yet detonated). (J) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming etc.), including speed and di rection and if any calves were present. (K) Resulting mitigation implemen tation: The report must indicate whether explosive detonations were de layed, ceased, modified, or not modi fied due to marine mammal presence and for how long. (L) If observation occurred while ex plosives were detonating in the water, indicate munition type in use at time of marine mammal detection. (3) Summary of sources used. This sec tion must include the following infor mation summarized from the author ized sound sources used in all training and testing events: (i) Total annual hours or quantity (per the LOA) of each bin of sonar or other acoustic sources (pile driving and air gun activities); and (ii) Total annual expended/detonated ordnance (missiles, bombs, sonobuoys, etc.) for each explosive bin. (4) Geographic information presen tation. The reports must present an an nual (and seasonal, where practical) de piction of training and testing bin usage (as well as pile driving activities) geographically across the AFTT Study Area. (5) Sonar exercise notification. The Navy must submit to NMFS (contact as specified in the LOA) an electronic report within fifteen calendar days after the completion of any MTE indi cating: (i) Location of the exercise; (ii) Beginning and end dates of the exercise; and (iii) Type of exercise. (f) Seven-year close-out comprehensive training and testing report. This report must be included as part of the 2025 an nual training and testing report. This report must provide the annual totals for each sound source bin with a com parison to the annual allowance and the seven-year total for each sound source bin with a comparison to the seven-year allowance. Additionally, if there were any changes to the sound source allowance, this report must in clude a discussion of why the change was made and include the analysis to support how the change did or did not result in a change in the EIS and final rule determinations. The draft report must be submitted within three months after the expiration of this sub part to the Director, Office of Pro tected Resources, NMFS. NMFS must submit comments on the draft close out report, if any, within three months of receipt. The report will be consid ered final after the Navy has addressed NMFS’ comments, or 3 months after the submittal of the draft if NMFS does not provide comments. § 218.86 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain Letters of Authorization (LOAs) in accordance with § 216.106 of this chapter. (b) LOAs, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of the regulations in this subpart. (c) If an LOA expires prior to the ex piration date of the regulations in this subpart, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision of § 218.87(c)(1) as re quired by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as de scribed in § 218.87. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00263 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 254 50 CFR Ch. II (10–1–22 Edition) § 218.87 (e) Each LOA will set forth: (1) Permissible methods of incidental taking; (2) Specified geographic areas for in cidental taking; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species or stocks of marine mammals and their habitat; and (4) Requirements for monitoring and reporting. (f) Issuance of the LOA(s) will be based on a determination that the level of taking must be consistent with the findings made for the total taking al lowable under the regulations in this subpart. (g) Notice of issuance or denial of the LOA(s) will be published in the FED ERAL REGISTER within 30 days of a de termination. § 218.87 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this subchapter and 218.86 may be re newed or modified upon request by the applicant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) under the regulations in this subpart were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations in this subpart or re sult in no more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish a notice of planned LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this subchapter and 218.86 may be modified by NMFS under the following circumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.86, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. §§ 218.88–218.89 [Reserved] Subpart J—Taking and Importing Marine Mammals; U.S. Navy’s Mariana Islands Training and Testing (MITT) SOURCE: 85 FR 46410, July 31, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 46410, July 31, 2020, subpart J was revised, effective from July 31, 2020, to July 30, 2027. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00264 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 255 National Marine Fisheries Service/NOAA, Commerce § 218.93 § 218.90 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to the activities listed in paragraph (c) of this section. (b) The taking of marine mammals by the Navy under this subpart may be authorized in a Letter of Authorization (LOA) only if it occurs within the Mar iana Islands Training and Testing (MITT) Study Area. The MITT Study Area is comprised of three components: The Mariana Islands Range Complex (MIRC), additional areas on the high seas, and a transit corridor between the MIRC and the Hawaii Range Com plex (HRC). The MIRC includes the waters south of Guam to north of Pagan (Commonwealth of the Northern Mariana Islands (CNMI)), and from the Pacific Ocean east of the Mariana Is lands to the Philippine Sea to the west, encompassing 501,873 square nautical miles (nmi2) of open ocean. The addi tional areas of the high seas include the area to the north of the MIRC that is within the U.S. Exclusive Economic Zone (EEZ) of the CNMI and the areas to the west of the MIRC. The transit corridor is outside the geographic boundaries of the MIRC and represents a great circle route (i.e., the shortest distance) across the high seas for Navy ships transiting between the MIRC and the HRC. Additionally, the MITT Study Area includes pierside locations in the Apra Harbor Naval Complex. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy conducting training and testing activities, includ ing: (1) Training. (i) Amphibious warfare; (ii) Anti-submarine warfare; (iii) Mine warfare; (iv)–(v) [Reserved]; (vi) Surface warfare; and (vii) Other training activities. (2) Testing. (i) Naval Air Systems Command Testing Activities; (ii) Naval Sea Systems Command Testing Activities; and (iii) Office of Naval Research Testing Activities. § 218.91 Effective dates. Regulations in this subpart are effec tive from July 31, 2020, to July 30, 2027. § 218.92 Permissible methods of tak ing. (a) Under an LOA issued pursuant to §§ 216.106 of this section and 218.96, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.90(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives, provided the activity is in compliance with all terms, condi tions, and requirements of the regula tions in this subpart and the applicable LOA. (b) The incidental take of marine mammals by the activities listed in § 218.90(c) is limited to the species list ed in Table 1 of this section. TABLE 1 TO § 218.92(b) Species Scientific name Blue whale ............................. Balaenoptera musculus. Bryde’s whale ........................ Balaenoptera edeni. Fin whale ............................... Balaenoptera physalus. Humpback whale ................... Megaptera novaeangliae. Minke whale ........................... Balaenoptera acutorostrata. Omura’s whale ....................... Balaenoptera omurai. Sei whale ............................... Balaenoptera borealis. Blainville’s beaked whale ...... Mesoplodon densirostris. Common bottlenose dolphin .. Tursiops truncatus. Cuvier’s beaked whale .......... Ziphius cavirostris. Dwarf sperm whale ................ Kogia sima. False killer whale ................... Pseudorca crassidens. Fraser’s dolphin ..................... Lagenodelphis hosei. Ginkgo-toothed beaked whale Mesoplodon ginkgodens. Killer whale ............................ Orcinus orca. Longman’s beaked whale ...... Indopacetus pacificus. Melon-headed whale ............. Peponocephala electra. Pantropical spotted dolphin ... Stenella attenuata. Pygmy killer whale ................. Feresa attenuata. Pygmy sperm whale .............. Kogia breviceps. Risso’s dolphin ...................... Grampus griseus. Rough-toothed dolphin .......... Steno bredanensis. Short-finned pilot whale ......... Globicephala macrorhynchus. Sperm whale .......................... Physeter macrocephalus. Spinner dolphin ...................... Stenella longirostris. Striped dolphin ....................... Stenella coeruleoalba. § 218.93 Prohibitions. Notwithstanding incidental takings contemplated in § 218.92(a) and author ized by an LOA issued under §§ 216.106 of this section and 218.96, no person in connection with the activities listed in § 218.90(c) may: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00265 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 256 50 CFR Ch. II (10–1–22 Edition) § 218.94 (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this section and 218.96; (b) Take any marine mammal not specified in § 218.92(b); (c) Take any marine mammal speci fied in § 218.92(b) in any manner other than as specified in the LOA issued under §§ 216.106 of this chapter and 218.96; or (d) Take a marine mammal specified in § 218.92(b) if NMFS determines such taking results in more than a neg ligible impact on the species of such marine mammal. § 218.94 Mitigation requirements. When conducting the activities iden tified in § 218.90(c), the mitigation measures contained in any LOA issued under §§ 216.106 of this section and 218.96 must be implemented. These mitiga tion measures include, but are not lim ited to: (a) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wher ever an applicable training or testing activity takes place within the MITT Study Area for each applicable activity category or stressor category and in cludes acoustic stressors (i.e., active sonar and other transducers, weapons firing noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber projectiles, missiles and rockets, bombs, sinking exercises, mines, anti-swimmer grenades), and physical disturbance and strike stressors (i.e., vessel movement; towed in-water devices; small-, medium-, and large-caliber non-explosive practice munitions; non-explosive missiles and rockets; and non-explosive bombs and mine shapes). (1) Environmental awareness and edu cation. Appropriate Navy personnel (in cluding civilian personnel) involved in mitigation and training or testing re porting under the specified activities will complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identi fied in their career path training plan. Modules include: Introduction to the U.S. Navy Afloat Environmental Com pliance Training Series, Marine Spe cies Awareness Training; U.S. Navy Protective Measures Assessment Pro tocol; and U.S. Navy Sonar Positional Reporting System and Marine Mammal Incident Reporting. (2) Active sonar. Active sonar includes low-frequency active sonar, mid-fre quency active sonar, and high-fre quency active sonar. For vessel-based activities, mitigation applies only to sources that are positively controlled and deployed from manned surface ves sels (e.g., sonar sources towed from manned surface platforms). For air craft-based activities, mitigation ap plies only to sources that are posi tively controlled and deployed from manned aircraft that do not operate at high altitudes (e.g., rotary-wing air craft). Mitigation does not apply to ac tive sonar sources deployed from un manned aircraft or aircraft operating at high altitudes (e.g., maritime patrol aircraft). (i) Number of Lookouts and observation platform—(A) Hull-mounted sources. One Lookout must be positioned for plat forms with space or manning restric tions while underway (at the forward part of a small boat or ship) and plat forms using active sonar while moored or at anchor (including pierside); and two Lookouts must be positioned for platforms without space or manning restrictions while underway (at the for ward part of the ship). (B) Sources that are not hull-mounted sources. One Lookout must be posi tioned on the ship or aircraft con ducting the activity. (ii) Mitigation zone and requirements. The mitigation zones must be the zones as described in paragraphs (a)(2)(ii)(B) and (C) of this section. (A) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must relocate or delay the start of active sonar transmission. (B) During the activity for low-fre quency active sonar at or above 200 dB and hull-mounted mid-frequency active sonar, Navy personnel must observe the mitigation zone for marine mam mals and power down active sonar transmission by 6 dB if marine mam mals are observed within 1,000 yd of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00266 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 257 National Marine Fisheries Service/NOAA, Commerce § 218.94 sonar source; power down by an addi tional 4 dB (for a total of 10 dB) if ma rine mammals are observed within 500 yd of the sonar source; and cease trans mission if marine mammals are ob served within 200 yd of the sonar source. (C) During the activity for low-fre quency active sonar below 200 dB, mid frequency active sonar sources that are not hull mounted, and high-frequency active sonar, Navy personnel must ob serve the mitigation zone for marine mammals and cease active sonar trans mission if marine mammals are ob served within 200 yd of the sonar source. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing or powering up active sonar transmission) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sonar source; the mitigation zone has been clear from any additional sightings for 10 minutes (min) for aircraft-deployed sonar sources or 30 min for vessel-de ployed sonar sources; for mobile activi ties, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or for activities using hull-mounted sonar where a dolphin(s) is observed in the mitigation zone, the Lookout con cludes that the dolphin(s) is delib erately closing in on the ship to ride the ship’s bow wave, and is therefore out of the main transmission axis of the sonar (and there are no other ma rine mammal sightings within the mitigation zone). (3) Weapons firing noise. Weapons fir ing noise associated with large-caliber gunnery activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the ship conducting the fir ing. Depending on the activity, the Lookout could be the same as the one provided for under ‘‘Explosive medium caliber and large-caliber projectiles’’ or under ‘‘Small-, medium-, and large-cal iber non-explosive practice munitions’’ in paragraphs (a)(6)(i) and (a)(15)(i) of this section. (ii) Mitigation zone and requirements. The mitigation zone must be thirty de grees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired. (A) Prior to the initial start of the activity, Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must relocate or delay the start of weapons firing. (B) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease weapons firing. (C) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing weapons firing) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the firing ship; the mitigation zone has been clear from any additional sightings for 30 min; or for mobile ac tivities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the loca tion of the last sighting. (4) Explosive sonobuoys—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft or on a small boat. If additional platforms are participating in the ac tivity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00267 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 258 50 CFR Ch. II (10–1–22 Edition) § 218.94 (ii) Mitigation zone and requirements. (A) The mitigation zone must be 600 yd around an explosive sonobuoy. (B) Prior to the initial start of the activity (e.g., during deployment of a sonobuoy pattern, which typically lasts 20–30 min), Navy personnel must conduct passive acoustic monitoring for marine mammals and use informa tion from detections to assist visual observations. Navy personnel also must visually observe the mitigation zone for marine mammals; if marine mam mals are observed, Navy personnel must relocate or delay the start of son obuoy or source/receiver pair detona tions. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease sonobuoy or source/receiver pair detonations. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the sono buoy; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves air craft that have fuel constraints (e.g., helicopter), or 30 min when the activity involves aircraft that are not typically fuel constrained. (E) After completion of the activity (e.g., prior to maneuvering off station), when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), Navy personnel must observe for marine mammals in the vicinity of where detonations occurred; if any in jured or dead marine mammals are ob served, Navy personnel must follow es tablished incident reporting proce dures. If additional platforms are sup porting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (5) Explosive torpedoes—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft. If additional platforms are par ticipating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 2,100 yd around the intended impact loca tion. (B) Prior to the initial start of the activity (e.g., during deployment of the target), Navy personnel must conduct passive acoustic monitoring for marine mammals and use the information from detections to assist visual obser vations. Navy personnel also must vis ually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must re locate or delay the start of firing. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals. If marine mammals are observed, Navy personnel must cease firing. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (E) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must when practical VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00268 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 259 National Marine Fisheries Service/NOAA, Commerce § 218.94 (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (6) Explosive medium-caliber and large caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation ap plies to activities using a surface tar get. (i) Number of Lookouts and observation platform. One Lookout must be on the vessel or aircraft conducting the activ ity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in ‘‘Weapons firing noise’’ in paragraph (a)(3)(i) of this section. If additional platforms are participating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 200 yd around the intended impact location for air-to-surface activities using ex plosive medium-caliber projectiles. (B) The mitigation zone must be 600 yd around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles. (C) The mitigation zone must be 1,000 yd around the intended impact location for surface-to-surface activities using explosive large-caliber projectiles. (D) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing. (E) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (F) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (G) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (7) Explosive missiles and rockets. Air craft-deployed explosive missiles and rockets. Mitigation applies to activi ties using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. If additional plat forms are participating in the activity, Navy personnel positioned on those as sets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 900 yd VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00269 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 260 50 CFR Ch. II (10–1–22 Edition) § 218.94 around the intended impact location for missiles or rockets with 0.6–20 lb net explosive weight. (B) 2,000 yd around the intended im pact location for missiles with 21–500 lb net explosive weight. (C) Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (D) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitiga tion zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual ob servation of the area where detona tions occurred. (8) Explosive bombs—(i) Number of Lookouts and observation platform. One Lookout must be positioned in an air craft conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 2,500 yd around the intended target. (B) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of bomb deployment. (C) During the activity (e.g., during target approach), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must cease bomb deployment. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing bomb deployment) until one of the following conditions has been met: The animal is observed exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended target; the mitigation zone has been clear from any addi tional sightings for 10 min; or for ac tivities using mobile targets, the in tended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (E) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00270 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 261 National Marine Fisheries Service/NOAA, Commerce § 218.94 are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (9) Sinking exercises—(i) Number of Lookouts and observation platform. Two Lookouts (one must be positioned in an aircraft and one must be positioned on a vessel). If additional platforms are participating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 2.5 nmi around the target ship hulk. (B) Prior to the initial start of the activity (90 min prior to the first fir ing), Navy personnel must conduct aer ial observations of the mitigation zone for marine mammals; if marine mam mals are observed, Navy personnel must delay the start of firing. (C) During the activity, Navy per sonnel must conduct passive acoustic monitoring for marine mammals and use the information from detections to assist visual observations. Navy per sonnel must visually observe the miti gation zone for marine mammals from the vessel; if marine mammals are ob served, Navy personnel must cease fir ing. Immediately after any planned or unplanned breaks in weapons firing of longer than two hours, Navy personnel must observe the mitigation zone for marine mammals from the aircraft and vessel; if marine mammals are ob served, Navy personnel must delay re commencement of firing. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the target ship hulk; or the mitigation zone has been clear from any additional sightings for 30 min. (E) After completion of the activity (for two hours after sinking the vessel or until sunset, whichever comes first), Navy personnel must observe for ma rine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident reporting procedures. If addi tional platforms are supporting this ac tivity (e.g., providing range clearance), Navy personnel on these assets will as sist in the visual observation of the area where detonations occurred. (10) Explosive mine countermeasure and neutralization activities—(i) Number of Lookouts and observation platform. (A) One Lookout must be positioned on a vessel or in an aircraft. (B) If additional platforms are par ticipating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 600 yd around the detonation site. (B) Prior to the initial start of the activity (e.g., when maneuvering on station; typically 10 min when the ac tivity involves aircraft that have fuel constraints, or 30 min when the activ ity involves aircraft that are not typi cally fuel constrained), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must re locate or delay the start of detona tions. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00271 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 262 50 CFR Ch. II (10–1–22 Edition) § 218.94 the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to detonation site; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves air craft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (E) [Reserved] (F) After completion of the activity (typically 10 min when the activity in volves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained), Navy personnel must observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (11) Explosive mine neutralization ac tivities involving Navy divers—(i) Number of Lookouts and observation platform. (A) Two Lookouts (two small boats with one Lookout each, or one Lookout must be on a small boat and one must be in a rotary-wing aircraft) when im plementing the smaller mitigation zone. (B) Four Lookouts (two small boats with two Lookouts each), and a pilot or member of an aircrew which must serve as an additional Lookout if air craft are used during the activity, must be used when implementing the larger mitigation zone. (C) All divers placing the charges on mines will support the Lookouts while performing their regular duties and will report applicable sightings to their supporting small boat or Range Safety Officer. (D) If additional platforms are par ticipating in the activity, Navy per sonnel positioned on those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for marine mammals and other applicable biological resources while performing their regular duties. (ii) Mitigation zone and requirements. (A) For Lookouts on small boats or air craft, the mitigation zone must be 500 yd around the detonation site under positive control. (B) For Lookouts on small boats or aircraft, the mitigation zone must be 1,000 yd around the detonation site dur ing all activities using time-delay fuses. (C) For divers, the mitigation zone must be the underwater detonation lo cation, which is defined as the sea space within the divers’ range of visi bility but no further than the mitiga tion zone specified for Lookouts on small boats or aircraft (500 yd or 1,000 yd depending on the charge type). (D) Prior to the initial start of the activity (when maneuvering on station for activities under positive control; 30 min for activities using time-delay fir ing devices), Navy Lookouts on small boats or aircraft, must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of detonations or fuse initiation. (E) During the activity, Navy Look outs on small boats or aircraft, must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must cease det onations or fuse initiation. While per forming their normal duties during the activity, divers must observe the un derwater detonation location for ma rine mammals. Divers must notify their supporting small boat or Range Safety Officer of marine mammal sightings at the underwater detonation location; if observed, the Navy must cease detonations or fuse initiation. To the maximum extent practicable de pending on mission requirements, safe ty, and environmental conditions, Navy personnel must position boats near the mid-point of the mitigation zone radius (but outside of the detona tion plume and human safety zone), must position themselves on opposite sides of the detonation location (when two boats are used), and must travel in VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00272 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 263 National Marine Fisheries Service/NOAA, Commerce § 218.94 a circular pattern around the detona tion location with one Lookout observ ing inward toward the detonation site and the other observing outward to ward the perimeter of the mitigation zone. If used, Navy aircraft must travel in a circular pattern around the deto nation location to the maximum ex tent practicable. Navy personnel must not set time-delay firing devices to ex ceed 10 min. (F) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the under water detonation location or mitiga tion zone (as applicable) prior to the initial start of the activity (by delay ing the start) or during the activity (by not recommencing detonations or fuse initiation) until one of the following conditions has been met: The animal is observed exiting the 500 yd or 1,000 yd mitigation zone; the animal is thought to have exited the 500 yd or 1,000 yd mitigation zone based on a determina tion of its course, speed, and movement relative to the detonation site; or the 500 yd or 1,000 yd mitigation zones (for Lookouts on small boats or aircraft) and the underwater detonation loca tion (for divers) has been clear from any additional sightings for 10 min dur ing activities under positive control with aircraft that have fuel con straints, or 30 min during activities under positive control with aircraft that are not typically fuel constrained and during activities using time-delay firing devices. (G) After completion of an activity, the Navy must observe for marine mammals for 30 min. Navy personnel must observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (12) Maritime security operations—anti swimmer grenades—(i) Number of Look outs and observation platform. One Look out must be positioned on the small boat conducting the activity. If addi tional platforms are participating in the activity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for marine mammals and other applicable biological re sources while performing their regular duties. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 200 yd around the intended detonation loca tion. (B) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must relocate or delay the start of detonations. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing detonations) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended detonation location; the mitigation zone has been clear from any addi tional sightings for 30 min; or the in tended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (E) After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not con strained by fuel restrictions or mis sion-essential follow-on commitments), observe for marine mammals in the vi cinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00273 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 264 50 CFR Ch. II (10–1–22 Edition) § 218.94 supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual ob servation of the area where detona tions occurred. (13) Vessel movement. The mitigation will not be applied if: The vessel’s safe ty is threatened; the vessel is re stricted in its ability to maneuver (e.g., during launching and recovery of air craft or landing craft, during towing activities, when mooring); the vessel is submerged or operated autonomously; or if impracticable based on mission re quirements (e.g., during Amphibious Assault and Amphibious Raid exer cises). (i) Number of Lookouts and observation platform. One Lookout must be on the vessel that is underway. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 500 yd around whales. (B) The mitigation zone must be 200 yd around all other marine mammals (except bow-riding dolphins). (C) During the activity. When under way Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. (iii) Reporting. If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures. (14) Towed in-water devices. Mitiga tion applies to devices that are towed from a manned surface platform or manned aircraft. The mitigation will not be applied if the safety of the tow ing platform or in-water device is threatened. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on a manned towing platform. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 250 yd around marine mammals. (B) During the activity (i.e., when towing an in-water device), Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. (15) Small-, medium-, and large-caliber non-explosive practice munitions. Mitiga tion applies to activities using a sur face target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described for ‘‘Weapons firing noise’’ in paragraph (a)(3)(i) of this sec tion. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 200 yd around the intended impact location. (B) Prior to the initial start of the activity (e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for marine mam mals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (D) Commencement/recommence ment conditions after a marine mam mal sighting before or during the activ ity. Navy personnel must allow a sight ed marine mammal to leave the miti gation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recom mencing firing) until one of the fol lowing conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; the mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or for activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting. (16) Non-explosive missiles and rockets. Aircraft-deployed non-explosive mis siles and rockets. Mitigation applies to activities using a surface target. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 900 yd around the intended impact location. (B) Prior to the initial start of the activity (e.g., during a fly-over of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00274 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 265 National Marine Fisheries Service/NOAA, Commerce § 218.94 mitigation zone), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are ob served, Navy personnel must relocate or delay the start of firing. (C) During the activity, Navy per sonnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (D) Commencement/recommence ment conditions after a marine mam mal sighting prior to or during the ac tivity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not re commencing firing) until one of the following conditions has been met: The animal is observed exiting the mitiga tion zone; the animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the intended impact location; or the mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel con straints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (17) Non-explosive bombs and mine shapes. Non-explosive bombs and non explosive mine shapes during mine lay ing activities. (i) Number of Lookouts and observation platform. One Lookout must be posi tioned in an aircraft. (ii) Mitigation zone and requirements. (A) The mitigation zone must be 1,000 yd around the intended target. (B) Prior to the initial start of the activity (e.g., when arriving on sta tion), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of bomb deployment or mine lay ing. (C) During the activity (e.g., during approach of the target or intended minefield location), Navy personnel must observe the mitigation zone for marine mammals and, if marine mam mals are observed, Navy personnel must cease bomb deployment or mine laying. (D) Commencement/recommence ment conditions after a marine mam mal sighting prior to or during the ac tivity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not re commencing bomb deployment or mine laying) until one of the following con ditions has been met: The animal is ob served exiting the mitigation zone; the animal is thought to have exited the mitigation zone based on a determina tion of its course, speed, and movement relative to the intended target or mine field location; the mitigation zone has been clear from any additional sightings for 10 min; or for activities using mobile targets, the intended tar get has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (b) Mitigation areas. In addition to procedural mitigation, Navy personnel must implement mitigation measures within mitigation areas to avoid or re duce potential impacts on marine mammals. (1) Mitigation areas for marine mam mals off Saipan in MITT Study Area for sonar, explosives, and vessel strikes—(i) Mitigation area requirements—(A) Marpi Reef and Chalan Kanoa Reef Geographic Mitigation Areas. (1) Navy personnel will conduct a maximum combined total of 20 hours annually from Decem ber 1 through April 30 of surface ship hull-mounted MF1 mid-frequency ac tive sonar during training and testing within the Marpi Reef and Chalan Kanoa Reef Geographic Mitigation Areas. (2) Navy personnel will not use in water explosives. (3) Navy personnel must report the total hours of all active sonar use (all bins, by bin) from December 1 through April 30 in these geographic mitigation areas in the annual training and test ing exercise report submitted to NMFS. (4) Should national security present a requirement to conduct training or testing prohibited by the mitigation requirements in this paragraph (b)(1)(i)(A), Navy personnel must ob tain permission from the appropriate VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00275 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 266 50 CFR Ch. II (10–1–22 Edition) § 218.95 designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include relevant information (e.g., sonar hours, explosives use) in its annual activity reports submitted to NMFS. (B) Marpi Reef and Chalan Kanoa Reef Awareness Notification Message Area. (1) Navy personnel must issue a seasonal awareness notification message to alert Navy ships and aircraft operating in the Marpi Reef and Chalan Kanoa Reef Geographic Mitigation Areas to the possible presence of increased con centrations of humpback whales from December 1 through April 30. (2) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct vessels to remain vigi lant to the presence of humpback whales that when concentrated season ally, may become vulnerable to vessel strikes. (3) Navy personnel must use the in formation from the awareness notifica tion message to assist their visual ob servation of applicable geographic mitigation zones during training and testing activities and to aid in the im plementation of procedural mitigation. (ii) [Reserved] (2) Mitigation areas for marine mam mals off Guam of the MITT Study Area for sonar and explosives—(i) Mitigation area requirements—(A) Agat Bay Near shore Geographic Mitigation Area. (1) Navy personnel will not conduct MF1 surface ship hull-mounted mid-fre quency active sonar year-round. (2) Navy personnel will not use in water explosives year-round. (3) Should national security require the use of MF1 surface ship hull mounted mid-frequency active sonar or explosives within the Agat Bay Near shore Geographic Mitigation Area, Navy personnel must obtain permission from the appropriate designated Com mand authority prior to commence ment of the activity. Navy personnel must provide NMFS with advance noti fication and include the information (e.g., sonar hours, explosives usage) in its annual activity reports submitted to NMFS. (B) [Reserved] § 218.95 Requirements for monitoring and reporting. (a) Unauthorized take. Navy personnel must notify NMFS immediately (or as soon as operational security consider ations allow) if the specified activity identified in § 218.90 is thought to have resulted in the serious injury or mor tality of any marine mammals, or in any Level A harassment or Level B harassment of marine mammals not identified in this subpart. (b) Monitoring and reporting under the LOA. The Navy must conduct all moni toring and reporting required under the LOA, including abiding by the U.S. Navy’s Marine Species Monitoring Pro gram for the MITT Study Area. Details on program goals, objectives, project selection process, and current projects are available at www.navymarine speciesmonitoring.us. (c) Notification of injured, live strand ed, or dead marine mammals. Navy per sonnel must consult the Notification and Reporting Plan, which sets out no tification, reporting, and other require ments when dead, injured, or live stranded marine mammals are de tected. The Notification and Reporting Plan is available at https:// www.fisheries.noaa.gov/action/incidental take-authorization-us-navy-mariana-is lands-training-and-testing-mitt. (d) Annual MITT Study Area marine species monitoring report. The Navy must submit an annual report to NMFS of the MITT Study Area moni toring which will be included in a Pa cific-wide monitoring report including results specific to the MITT Study Area describing the implementation and results from the previous calendar year. Data collection methods will be standardized across Pacific Range Complexes including the MITT, HSTT, NWTT, and Gulf of Alaska (GOA) Study Areas to the best extent prac ticable, to allow for comparison in dif ferent geographic locations. The report must be submitted to the Director, Of fice of Protected Resources, NMFS, ei ther within three months after the end of the calendar year, or within three months after the conclusion of the monitoring year, to be determined by the Adaptive Management process. NMFS will submit comments or ques tions on the draft monitoring report, if VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00276 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 267 National Marine Fisheries Service/NOAA, Commerce § 218.95 any, within three months of receipt. The report will be considered final after the Navy has addressed NMFS’ comments, or three months after the submittal of the draft if NMFS does not provide comments on the draft re port. Such a report will describe progress of knowledge made with re spect to monitoring study questions across multiple Navy ranges associated with the ICMP. Similar study ques tions must be treated together so that progress on each topic can be summa rized across multiple Navy ranges. The report need not include analyses and content that does not provide direct as sessment of cumulative progress on the monitoring study question. This will continue to allow the Navy to provide a cohesive monitoring report covering multiple ranges (as per ICMP goals), rather than entirely separate reports for the MITT, Hawaii-Southern Cali fornia, Gulf of Alaska, and Northwest Training and Testing Study Areas. (e) Annual MITT Study Area Training and Testing Exercise Report. Each year, the Navy must submit a preliminary report (Quick Look Report) detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of the LOA to the Director, Office of Protected Re sources, NMFS. The Navy must also submit a detailed report (MITT Annual Training and Testing Exercise Report) to the Director, Office of Protected Re sources, NMFS, within three months after the one-year anniversary of the date of issuance of the LOA. The MITT Annual Training and Testing Exercise Report can be consolidated with other exercise reports from other range com plexes in the Pacific Ocean for a single Pacific Exercise Report, if desired. NMFS will submit comments or ques tions on the report, if any, within one month of receipt. The report will be considered final after the Navy has ad dressed NMFS’ comments, or one month after submittal of the draft if NMFS does not provide comments on the draft report. The annual will con tain information on major training ex ercises (MTEs), Sinking Exercise (SINKEX) events, and a summary of all sound sources used (total hours or quantity of each bin of sonar or other non-impulsive source; total annual number of each type of explosive exer cises; and total annual expended/deto nated rounds (missiles, bombs, sonobuoys, etc.) for each explosive bin). The annual report will also contain in formation on sound sources used in cluding within specific mitigation re porting areas as described in paragraph (e)(4) of this section. The annual report will also contain both the current year’s data as well as cumulative sonar and explosive use quantity from pre vious years’ reports. Additionally, if there were any changes to the sound source allowance in a given year, or cu mulatively, the report will include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the 2020 MITT FSEIS/OEIS and MMPA final rule. The annual re port will also include the details re garding specific requirements associ ated with specific mitigation areas. The final annual/close-out report at the conclusion of the authorization period (year seven) will serve as the com prehensive close-out report and include both the final year annual use com pared to annual authorization as well as a cumulative seven-year annual use compared to seven-year authorization. The detailed reports must contain the information identified in paragraphs (e)(1) through (6) of this section. (1) MTEs. This section of the report must contain the following informa tion for MTEs conducted in the MITT Study Area. (i) Exercise information for each MTE. (A) Exercise designator. (B) Date that exercise began and ended. (C) Location. (D) Number and types of active sonar sources used in exercise. (E) Number and types of passive acoustic sources used in exercise. (F) Number and types of vessels, air craft, and other platforms partici pating in exercise. (G) Total hours of all active sonar source operation. (H) Total hours of each active sonar source bin. (I) Wave height (high, low, and aver age) during exercise. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00277 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 268 50 CFR Ch. II (10–1–22 Edition) § 218.95 (ii) Individual marine mammal sight ing information for each sighting in each exercise where mitigation was im plemented. (A) Date/Time/Location of sighting. (B) Species (if not possible, indica tion of whale or dolphin). (C) Number of individuals. (D) Initial Detection Sensor (e.g., sonar, Lookout). (E) Indication of specific type of plat form observation was made from (in cluding, for example, what type of sur face vessel or testing platform). (F) Length of time observers main tained visual contact with marine mammal. (G) Sea state. (H) Visibility. (I) Sound source in use at the time of sighting. (J) Indication of whether the animal was less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd from sonar source. (K) Whether operation of sonar sen sor was delayed, or sonar was powered or shut down, and how long the delay. (L) If source in use was hull-mount ed, true bearing of animal from the vessel, true direction of vessel’s travel, and estimation of animal’s motion rel ative to vessel (opening, closing, par allel). (M) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming, etc.) and if any calves were present. (iii) An evaluation (based on data gathered during all of the MTEs) of the effectiveness of mitigation measures designed to minimize the received level to which marine mammals may be ex posed. This evaluation must identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitiga tion. (2) SINKEXs. This section of the re port must include the following infor mation for each SINKEX completed that year. (i) Exercise information gathered for each SINKEX. (A) Location. (B) Date and time exercise began and ended. (C) Total hours of observation by Lookouts before, during, and after ex ercise. (D) Total number and types of explo sive source bins detonated. (E) Number and types of passive acoustic sources used in exercise. (F) Total hours of passive acoustic search time. (G) Number and types of vessels, air craft, and other platforms, partici pating in exercise. (H) Wave height in feet (high, low, and average) during exercise. (I) Narrative description of sensors and platforms utilized for marine mammal detection and timeline illus trating how marine mammal detection was conducted. (ii) Individual marine mammal obser vation (by Navy Lookouts) information for each sighting where mitigation was implemented. (A) Date/Time/Location of sighting. (B) Species (if not possible, indicate whale or dolphin). (C) Number of individuals. (D) Initial detection sensor (e.g., sonar or Lookout). (E) Length of time observers main tained visual contact with marine mammal. (F) Sea state. (G) Visibility. (H) Whether sighting was before, dur ing, or after detonations/exercise, and how many minutes before or after. (I) Distance of marine mammal from actual detonations (or target spot if not yet detonated): Less than 200 yd, 200 to 500 yd, 500 to 1,000 yd, 1,000 to 2,000 yd, or greater than 2,000 yd. (J) Lookouts must report, in plain language and without trying to cat egorize in any way, the observed behav ior of the animal(s) (such as animal closing to bow ride, paralleling course/ speed, floating on surface and not swimming etc.), including speed and di rection and if any calves were present. (K) The report must indicate whether explosive detonations were delayed, ceased, modified, or not modified due to marine mammal presence and for how long. (L) If observation occurred while ex plosives were detonating in the water, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00278 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 269 National Marine Fisheries Service/NOAA, Commerce § 218.97 indicate munition type in use at time of marine mammal detection. (3) Summary of sources used. This sec tion of the report must include the fol lowing information summarized from the authorized sound sources used in all training and testing events: (i) Total annual hours or quantity (per the LOA) of each bin of sonar or other transducers; and (ii) Total annual expended/detonated ordnance (missiles, bombs, sonobuoys, etc.) for each explosive bin. (4) Marpi Reef and Chalan Kanoa Reef Geographic Mitigation Areas. The Navy must report any active sonar use (all bins, by bin) between December 1 and April 30 that occurred as specifically described in these areas. Information included in the classified annual re ports may be used to inform future adaptive management within the MITT Study Area. (5) Geographic information presen tation. The reports must present an an nual (and seasonal, where practical) de piction of training and testing bin usage geographically across the MITT Study Area. (6) Sonar exercise notification. The Navy must submit to NMFS (contact as specified in the LOA) an electronic report within fifteen calendar days after the completion of any MTE indi cating: (i) Location of the exercise; (ii) Beginning and end dates of the exercise; and (iii) Type of exercise. (f) Final Close-Out Report. The final (year seven) draft annual/close-out re port must be submitted within three months after the expiration of this sub part to the Director, Office of Pro tected Resources, NMFS. NMFS must submit comments on the draft close out report, if any, within three months of receipt. The report will be consid ered final after the Navy has addressed NMFS’ comments, or three months after the submittal of the draft if NMFS does not provide comments. § 218.96 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain an LOA in accordance with § 216.106 of this section. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed July 30, 2027. (c) If an LOA expires prior to July 30, 2027, the Navy may apply for and ob tain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision of § 218.97(c)(1)) re quired by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as de scribed in § 218.97. (e) Each LOA will set forth: (1) Permissible methods of incidental taking; (2) Geographic areas for incidental taking; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species of marine mammals and their habitat; and (4) Requirements for monitoring and reporting. (f) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the find ings made for the total taking allow able under the regulations in this sub part. (g) Notice of issuance or denial of the LOA(s) will be published in the FED ERAL REGISTER within 30 days of a de termination. § 218.97 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this section and 218.96 for the activity identified in § 218.90(c) may be renewed or modified upon request by the appli cant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) were implemented. (b) For LOA modification or renewal requests by the applicant that include VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00279 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 270 50 CFR Ch. II (10–1–22 Edition) § 218.140 changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or years), NMFS may pub lish a notice of planned LOA in the FEDERAL REGISTER, including the asso ciated analysis of the change, and so licit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this section and 218.96 may be modified by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s annual monitoring report and annual exercise report from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; (C) Results from specific stranding investigations; or (D) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this section and 218.96, an LOA may be modified without prior notice or oppor tunity for public comment. Notice will be published in the FEDERAL REGISTER within thirty days of the action. Subparts K–N [Reserved] Subpart O—Taking and Importing Marine Mammals; U.S. Navy’s Northwest Training and Testing (NWTT) SOURCE: 85 FR 72459, Nov. 12, 2020, unless otherwise noted. EFFECTIVE DATE NOTE: At 85 FR 72459, Nov. 12, 2020, subpart O was revised, effective Nov. 9, 2020, to Nov. 8, 2027 § 218.140 Specified activity and geo graphical region. (a) Regulations in this subpart apply only to the U.S. Navy (Navy) for the taking of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs inci dental to the activities listed in para graph (c) of this section. (b) The taking of marine mammals by the Navy under this subpart may be authorized in Letters of Authorization (LOAs) only if it occurs within the NWTT Study Area. The NWTT Study Area is composed of established mari time operating and warning areas in the eastern North Pacific Ocean region, including areas of the Strait of Juan de Fuca, Puget Sound, and Western Behm Canal in southeastern Alaska. The Study Area includes air and water space within and outside Washington state waters, and outside state waters of Oregon and Northern California. The eastern boundary of the Offshore Area portion of the Study Area is 12 nautical miles (nmi) off the coastline for most of the Study Area starting south of W– 237, including southern Washington, Oregon, and Northern California. The Offshore Area includes the ocean all the way to the coastline only along that part of the Washington coast that lies beneath the airspace of W–237 and the Olympic Military Operations Area. The Quinault Range Site is a defined area of sea space where training and testing is conducted. The Quinault Range Site coincides with the bound aries of W–237A and also includes a surf zone component. The surf zone compo nent extends north to south 5 nmi VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00280 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 271 National Marine Fisheries Service/NOAA, Commerce § 218.142 along the eastern boundary of W–237A, extends approximately 3 nmi to shore along the mean lower low water line, and encompasses 1 mile (1.6 kilo meters) of shoreline at Pacific Beach, Washington. The Study Area includes four existing range complexes and fa cilities: the Northwest Training Range Complex (NWTRC), the Keyport Range Complex, the Carr Inlet Operations Area, and the Southeast Alaska Acous tic Measurement Facility (SEAFAC). In addition to these range complexes, the Study Area also includes Navy pierside locations where sonar mainte nance and testing occurs as part of overhaul, modernization, maintenance, and repair activities at Naval Base Kitsap, Bremerton; Naval Base Kitsap, Bangor; and Naval Station Everett. (c) The taking of marine mammals by the Navy is only authorized if it oc curs incidental to the Navy conducting training and testing activities, includ ing: (1) Anti-submarine warfare; (2) Mine warfare; (3) Surface warfare; (4) Unmanned systems; (5) Vessel evaluation; and (6) Other training and testing activi ties. § 218.141 Effective dates. Regulations in this subpart are effec tive from November 9, 2020, through November 8, 2027. § 218.142 Permissible methods of tak ing. (a) Under LOAs issued pursuant to §§ 216.106 of this chapter and 218.146, the Holder of the LOAs (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.140(b) by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives, as well as serious in jury or mortality associated with ves sel strikes, provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the applicable LOAs. (b) The incidental take of marine mammals by the activities listed in § 218.140(c) is limited to the following species: TABLE 1 TO PARAGRAPH (b) Species Stock Blue whale ................................ Eastern North Pacific. Fin whale .................................. Northeast Pacific. Fin whale .................................. California/Oregon/Washington. Sei whale .................................. Eastern North Pacific. Minke whale .............................. Alaska. Minke whale .............................. California/Oregon/Washington. Humpback whale ...................... Central North Pacific. Humpback whale ...................... California/Oregon/Washington. Gray whale ............................... Eastern North Pacific. Bottlenose dolphin .................... California/Oregon/Washington Offshore. Killer whale ............................... Alaska Resident. Killer whale ............................... Eastern North Pacific Offshore. Killer whale ............................... West Coast Transient. Killer whale ............................... Southern Resident. Northern right whale dolphin .... California/Oregon/Washington. Pacific white-sided dolphin ....... North Pacific. Pacific white-sided dolphin ....... California/Oregon/Washington. Risso’s dolphin ......................... California/Oregon/Washington. Short-beaked common dolphin California/Oregon/Washington. Short-finned pilot whale ............ California/Oregon/Washington. Striped dolphin .......................... California/Oregon/Washington. Pygmy sperm whale ................. California/Oregon/Washington. Dwarf sperm whale ................... California/Oregon/Washington. Dall’s porpoise .......................... Alaska. Dall’s porpoise .......................... California/Oregon/Washington. Harbor porpoise ........................ Southeast Alaska. Harbor porpoise ........................ Northern Oregon & Washington Coast. Harbor porpoise ........................ Northern California/Southern Oregon. Harbor porpoise ........................ Washington Inland Waters. Sperm whale ............................. California/Oregon/Washington. Baird’s beaked whale ............... California/Oregon/Washington. Cuvier’s beaked whale ............. California/Oregon/Washington. Mesoplodon species ................. California/Oregon/Washington. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00281 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 272 50 CFR Ch. II (10–1–22 Edition) § 218.143 TABLE 1 TO PARAGRAPH (b)—Continued Species Stock California sea lion ..................... U.S. Stock. Steller sea lion .......................... Eastern U.S. Guadalupe fur seal ................... Mexico. Northern fur seal ....................... Eastern Pacific. Northern fur seal ....................... California. Harbor seal ............................... Southeast Alaska—Clarence Strait. Harbor seal ............................... Oregon & Washington Coastal. Harbor seal ............................... Washington Northern Inland Waters. Harbor seal ............................... Hood Canal. Harbor seal ............................... Southern Puget Sound. Northern elephant seal ............. California. § 218.143 Prohibitions. (a) Notwithstanding incidental takings contemplated in § 218.142(a) and authorized by LOAs issued under §§ 216.106 of this chapter and 218.146, no person in connection with the activi ties listed in § 218.140(c) may: (1) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or an LOA issued under §§ 216.106 of this chapter and 218.146; (2) Take any marine mammal not specified in § 218.142(b); (3) Take any marine mammal speci fied in § 218.142(b) in any manner other than as specified in the LOAs; or (4) Take a marine mammal specified in § 218.142(b) if NMFS determines such taking results in more than a neg ligible impact on the species or stock of such marine mammal. (b) [Reserved] § 218.144 Mitigation requirements. (a) When conducting the activities identified in § 218.140(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 218.146 must be implemented. These mitigation measures include, but are not limited to: (1) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wher ever an applicable training or testing activity takes place within the NWTT Study Area for each applicable activity category or stressor category and in cludes acoustic stressors (i.e., active sonar, weapons firing noise), explosive stressors (i.e., sonobuoys, torpedoes, medium-caliber and large-caliber pro jectiles, missiles, bombs, Mine Coun termeasure and Neutralization activi ties, mine neutralization involving Navy divers), and physical disturbance and strike stressors (i.e., vessel move ment, towed in-water devices, small-, medium-, and large-caliber non-explo sive practice munitions, non-explosive missiles, non-explosive bombs and mine shapes). (i) Environmental awareness and edu cation. Appropriate Navy personnel (in cluding civilian personnel) involved in mitigation and training or testing ac tivity reporting under the specified ac tivities will complete the environ mental compliance training modules identified in their career path training plan, as specified in the LOAs. (ii) Active sonar. Active sonar in cludes low-frequency active sonar, mid frequency active sonar, and high-fre quency active sonar. For vessel-based active sonar activities, mitigation ap plies only to sources that are posi tively controlled and deployed from manned surface vessels (e.g., sonar sources towed from manned surface platforms). For aircraft-based active sonar activities, mitigation applies only to sources that are positively con trolled and deployed from manned air craft that do not operate at high alti tudes (e.g., rotary-wing aircraft). Miti gation does not apply to active sonar sources deployed from unmanned air craft or aircraft operating at high alti tudes (e.g., maritime patrol aircraft). (A) Number of Lookouts and observa tion platform for hull-mounted sources. For hull-mounted sources, the Navy must have one Lookout for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00282 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 273 National Marine Fisheries Service/NOAA, Commerce § 218.144 anchor (including pierside), and two Lookouts for platforms without space or manning restrictions while under way (at the forward part of the ship). (B) Number of Lookouts and observa tion platform for sources not hull-mount ed. For sources that are not hull mounted, the Navy must have one Lookout on the ship or aircraft con ducting the activity. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when maneuvering on station), Navy per sonnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start of active sonar transmission until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(ii)(F) are met for ma rine mammals. (D) During activity for low-frequency active sonar at 200 decibels (dB) and hull mounted mid-frequency active sonar. Dur ing the activity, for low-frequency ac tive sonar at 200 dB and hull-mounted mid-frequency active sonar, Navy per sonnel must observe the following mitigation zones for marine mammals. (1) Powerdowns for marine mammals. Navy personnel must power down ac tive sonar transmission by 6 dB if ma rine mammals are observed within 1,000 yard (yd) of the sonar source; Navy per sonnel must power down an additional 4 dB (10 dB total) if marine mammals are observed within 500 yd of the sonar source. (2) Shutdowns for marine mammals. Navy personnel must cease trans mission if cetaceans are observed with in 200 yd of the sonar source in any lo cation in the Study Area; Navy per sonnel must cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source and cease transmission if pinnipeds in NWTT Inland Waters are observed within 100 yd of the sonar source (ex cept if hauled out on, or in the water near, man-made structures and ves sels). (E) During activity for low-frequency active sonar below 200 dB, mid-frequency active sonar not hull-mounted, and high frequency sonar. During the activity, for low-frequency active sonar below 200 dB, mid-frequency active sonar sources that are not hull-mounted, and high-frequency sonar, Navy personnel must observe the following mitigation zones for marine mammals. Navy per sonnel must cease transmission if cetaceans are observed within 200 yd of the sonar source in any location in the Study Area. Navy personnel must cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source. Navy personnel must cease transmission if pinnipeds in NWTT In land Waters are observed within 100 yd of the sonar source (except if hauled out on, or in the water near, man-made structures and vessels). (F) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing or powering up active sonar transmission) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the sonar source; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 minutes (min) for aircraft-deployed sonar sources or 30 min for vessel-deployed sonar sources; (4) Sonar source transit. For mobile ac tivities, the active sonar source has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting; or (5) Bow-riding dolphins. For activities using hull-mounted sonar, the Lookout concludes that dolphins are delib erately closing in on the ship to ride the ship’s bow wave, and are therefore out of the main transmission axis of the sonar (and there are no other ma rine mammal sightings within the mitigation zone). (iii) Weapons firing noise. Weapons fir ing noise associated with large-caliber gunnery activities. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00283 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 274 50 CFR Ch. II (10–1–22 Edition) § 218.144 (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned on the ship conducting the fir ing. Depending on the activity, the Lookout could be the same as the one described for ‘‘Explosive medium-cal iber and large-caliber projectiles’’ or for ‘‘Small-, medium-, and large-caliber non-explosive practice munitions’’ in paragraphs (a)(1)(vi)(A) and (a)(1)(xiii)(A) of this section. (B) Mitigation zone. Thirty degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired. (C) Prior to activity. Prior to the ini tial start of the activity, Navy per sonnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start of weapons firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(iii)(E) of this section are met for marine mammals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease weapons firing. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing weapons firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the firing ship; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 min; or (4) Firing ship transit. For mobile ac tivities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the loca tion of the last sighting. (iv) Explosive sonobuoys. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft or on a small boat. If additional platforms are par ticipating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources, includ ing marine mammals, while performing their regular duties. (B) Mitigation zone. 600 yd around an explosive sonobuoy. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., during deployment of a sonobuoy field, which typically lasts 20–30 min), Navy per sonnel must conduct passive acoustic monitoring for marine mammals; per sonnel must use information from de tections to assist visual observations. Navy personnel also must visually ob serve the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mam mal is observed, Navy personnel must relocate or delay the start of sonobuoy or source/receiver pair detonations until the mitigation zone is clear of floating vegetation or until the condi tions in paragraph (a)(1)(iv)(E) of this section are met for marine mammals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease sonobuoy or source/receiver pair detonations. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing detonations) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the sonobuoy; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00284 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 275 National Marine Fisheries Service/NOAA, Commerce § 218.144 that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (v) Explosive torpedoes. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft. If additional platforms are participating in the ac tivity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources, including marine mam mals, while performing their regular duties. (B) Mitigation zone. 2,100 yd around the intended impact location. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., during deployment of the target), Navy per sonnel must conduct passive acoustic monitoring for marine mammals; per sonnel must use the information from detections to assist visual observa tions. Navy personnel also must vis ually observe the mitigation zone for floating vegetation and marine mam mals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of fir ing until the mitigation zone is clear of floating vegetation or until the condi tions in paragraph (a)(1)(v)(E) of this section are met for marine mammals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended impact location; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (vi) Explosive medium-caliber and large caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation ap plies to activities using a surface tar get. (A) Number of Lookouts and observa tion platform. One Lookout must be on the vessel conducting the activity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described for ‘‘Weapons firing noise’’ in paragraph (a)(1)(iii)(A) of this section. If additional platforms are participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00285 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 276 50 CFR Ch. II (10–1–22 Edition) § 218.144 applicable biological resources, includ ing marine mammals, while performing their regular duties. (B) Mitigation zones. 600 yd around the intended impact location for explosive medium-caliber projectiles. 1,000 yd around the intended impact location for explosive large-caliber projectiles. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when maneuvering on station), Navy per sonnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(vi)(E) of this section are met for marine mam mals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended impact location; (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 30 min for vessel-based firing; or (4) Impact location transit. For activi ties using mobile targets, the intended impact location has transited a dis tance equal to double that of the miti gation zone size beyond the location of the last sighting. (F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (vii) Explosive missiles. Aircraft-de ployed explosive missiles. Mitigation applies to activities using a surface target. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft. If additional platforms are participating in the ac tivity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources, including marine mam mals, while performing their regular duties. (B) Mitigation zone. 2,000 yd around the intended impact location. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(vii)(E) of this section are met for marine mam mals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00286 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 277 National Marine Fisheries Service/NOAA, Commerce ยง 218.144 (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended impact location; or (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (viii) Explosive bombs. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft conducting the activity. If additional platforms are participating in the activity, Navy per sonnel positioned in those assets (e.g., safety observers, evaluators) must sup port observing the mitigation zone for applicable biological resources, includ ing marine mammals, while performing their regular duties. (B) Mitigation zone. 2,500 yd around the intended target. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when ar riving on station), Navy personnel must observe the mitigation zone for floating vegetation and marine mam mals; if floating vegetation or a marine mammals is observed, Navy personnel must relocate or delay the start of bomb deployment until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(viii)(E) of this section are met for marine mammals. (D) During activity. During the activ ity (e.g., during target approach), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease bomb deployment. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing bomb deploy ment) until one of the following condi tions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended target; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or (4) Intended target transit. For activi ties using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commit ments), observe for marine mammals in the vicinity of where detonations oc curred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident re porting procedures. If additional plat forms are supporting this activity (e.g., providing range clearance), Navy per sonnel on these assets must assist in the visual observation of the area where detonations occurred. (ix) Explosive Mine Countermeasure and Neutralization activities. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned on a vessel or in an aircraft when implementing the smaller miti gation zone. Two Lookouts must be po sitioned (one in an aircraft and one on a small boat) when implementing the larger mitigation zone. If additional platforms are participating in the ac tivity, Navy personnel positioned in VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00287 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 278 50 CFR Ch. II (10–1–22 Edition) § 218.144 those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources, including marine mam mals, while performing their regular duties. (B) Mitigation zones. 600 yd around the detonation site for activities using ≤5 lb net explosive weight. 2,100 yd around the detonation site for activities using >5–60 lb net explosive weight. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when maneuvering on station; typically, 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel con strained), Navy personnel must observe the mitigation zone for floating vege tation and marine mammals; if float ing vegetation or a marine mammal is observed, Navy personnel must relo cate or delay the start of detonations until the mitigation zone is clear of floating vegetation or until the condi tions in paragraph (a)(1)(ix)(E) are met for marine mammals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. Navy personnel must use the smallest practicable charge size for each activ ity. Navy personnel must conduct ac tivities in daylight hours only and in Beaufort Sea state number 3 conditions or less. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing detonations) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the detonation site; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (F) After activity. After completion of the activity (typically 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the ac tivity involves aircraft that are not typically fuel constrained), Navy per sonnel must observe for marine mam mals in the vicinity of where detona tions occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established inci dent reporting procedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred. (x) Explosive mine neutralization activi ties involving Navy divers. (A) Number of Lookouts and observa tion platform. (1) Lookouts on small boats. Two Look outs on two small boats with one Look out each, one of which must be a Navy biologist. (2) Divers. All divers placing the charges on mines must support the Lookouts while performing their reg ular duties and report applicable sightings to the lead Lookout, the sup porting small boat, or the Range Safe ty Officer. (3) Additional platforms. If additional platforms are participating in the ac tivity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biologi cal resources, including marine mam mals, while performing their regular duties. (B) Mitigation zone. 500 yd around the detonation site during activities using > 0.5–2.5 lb net explosive weight. (C) Prior to activity. Prior to the ini tial start of the activity (starting 30 min before the first planned detona tion), Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vege tation or a marine mammal is ob served, Navy personnel must relocate or delay the start of detonations until the mitigation zone is clear of floating vegetation or until the conditions in VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00288 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 279 National Marine Fisheries Service/NOAA, Commerce § 218.144 paragraph (a)(1)(x)(E) are met for ma rine mammals. A Navy biologist must serve as the lead Lookout and must make the final determination that the mitigation zone is clear of any floating vegetation or marine mammals, prior to the commencement of a detonation. The Navy biologist must maintain radio communication with the unit conducting the event and the other Lookout. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. To the maximum extent practicable de pending on mission requirements, safe ty, and environmental conditions, Navy personnel must position boats near the midpoint of the mitigation zone radius (but outside of the detona tion plume and human safety zone), must position themselves on opposite sides of the detonation location, and must travel in a circular pattern around the detonation location with one Lookout observing inward toward the detonation site and the other ob serving outward toward the perimeter of the mitigation zone. Navy personnel must only use positively controlled charges (i.e., no time-delay fuses). Navy personnel must use the smallest prac ticable charge size for each activity. All activities must be conducted in Beaufort sea state number 2 conditions or better and must not be conducted in low visibility conditions. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted animal to leave the mitigation zone prior to the initial start of the activity (by delaying the start to ensure the mitigation zone is clear for 30 min) or during the activity (by not recommencing detonations) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the detonation site; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 min. (F) After activity. After each detona tion and completion of an activity, the Navy must observe for marine mam mals for 30 min in the vicinity of where detonations occurred and immediately downstream of the detonation location; if any injured or dead marine mammals are observed, Navy personnel must fol low established incident reporting pro cedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detona tions occurred. (xi) Vessel movement. The mitigation will not be applied if: The vessel’s safe ty is threatened; the vessel is re stricted in its ability to maneuver (e.g., during launching and recovery of air craft or landing craft, during towing activities, when mooring, and during Transit Protection Program exercises or other events involving escort ves sels); the vessel is submerged or oper ated autonomously; or when imprac tical based on mission requirements (e.g., during test body retrieval by range craft). (A) Number of Lookouts and observa tion platform. One Lookout must be on the vessel that is underway. (B) Mitigation zones. (1) Whales. 500 yd around whales. (2) Marine mammals other than whales: Surface vessels. 200 yd around marine mammals other than whales (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and ves sels) for surface vessels (which do not include small boats). (3) Marine mammals other than whales: Small boats. 100 yd around marine mam mals other than whales (except bow riding dolphins and pinnipeds hauled out on man-made navigational struc tures, port structures, and vessels) for small boats, such as range craft. (C) During activity. When underway, Navy personnel must observe the miti gation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00289 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 280 50 CFR Ch. II (10–1–22 Edition) § 218.144 (D) Incident reporting procedures. If a marine mammal vessel strike occurs, Navy personnel must follow the estab lished incident reporting procedures. (xii) Towed in-water devices. Mitiga tion applies to devices that are towed from a manned surface platform or manned aircraft, or when a manned support craft is already participating in an activity involving in-water de vices being towed by unmanned plat forms. The mitigation will not be ap plied if the safety of the towing plat form or in-water device is threatened. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned on a manned towing platform or support craft. (B) Mitigation zones. (1) Mitigation zone: In-water devices towed by aircraft or surface ships. 250 yd around marine mammals (except bow riding dolphins and pinnipeds hauled out on man-made navigational struc tures, port structures, and vessels) for in-water devices towed by aircraft or surface ships. (2) Mitigation zone: In-water devices towed by small boats. 100 yd around ma rine mammals (except bow-riding dol phins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels) for in water devices towed by small boats, such as range craft. (C) During activity. During the activ ity (i.e., when towing an in-water de vice), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance. (xiii) Small-, medium-, and large-caliber non-explosive practice munitions. Gun nery activities using small-, medium-, and large-caliber non-explosive prac tice munitions. Mitigation applies to activities using a surface target. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned on the platform conducting the activity. Depending on the activ ity, the Lookout could be the same as the one described for ‘‘Weapons firing noise’’ in paragraph (a)(1)(iii)(A) of this section. (B) Mitigation zone. 200 yd around the intended impact location. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when maneuvering on station), Navy per sonnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start until the mitigation zone is clear of floating vegetation or until the condi tions in paragraph (a)(1)(xiii)(E) are met for marine mammals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by de laying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended impact location; (3) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for ves sel-based firing; or (4) Impact location transit. For activi ties using a mobile target, the intended impact location has transited a dis tance equal to double that of the miti gation zone size beyond the location of the last sighting. (xiv) Non-explosive missiles. Aircraft deployed non-explosive missiles. Miti gation applies to activities using a sur face target. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft. (B) Mitigation zone. 900 yd around the intended impact location. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., during a fly-over of the mitigation zone), Navy personnel must observe the mitigation zone for floating vegetation and marine VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00290 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 281 National Marine Fisheries Service/NOAA, Commerce ยง 218.144 mammals; if floating vegetation or a marine mammal is observed, Navy per sonnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(xiv)(E) of this section are met for marine mam mals. (D) During activity. During the activ ity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease firing. (E) Commencement/recommencement conditions after marine mammal sighting prior to or during activity. Navy per sonnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended impact location; or (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained. (xv) Non-explosive bombs and mine shapes. Non-explosive bombs and non explosive mine shapes during mine lay ing activities. (A) Number of Lookouts and observa tion platform. One Lookout must be po sitioned in an aircraft. (B) Mitigation zone. 1,000 yd around the intended target. (C) Prior to activity. Prior to the ini tial start of the activity (e.g., when ar riving on station), Navy personnel must observe the mitigation zone for floating vegetation and marine mam mals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of bomb deployment or mine laying until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(xv)(E) of this section are met for marine mammals. (D) During activity. During the activ ity (e.g., during approach of the target or intended minefield location), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease bomb deployment or mine laying. (E) Commencement/recommencement conditions after marine mammal sighting prior to or during activity. Navy per sonnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment or mine laying) until one of the following conditions has been met: (1) Observed exiting. The animal is ob served exiting the mitigation zone; (2) Thought to have exited. The animal is thought to have exited the mitiga tion zone based on a determination of its course, speed, and movement rel ative to the intended target or mine field location; (3) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or (4) Intended target transit. For activi ties using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sight ing. (2) Mitigation areas. In addition to procedural mitigation, Navy personnel must implement mitigation measures within mitigation areas to avoid or re duce potential impacts on marine mammals. (i) Marine Species Coastal Mitigation Area (year round unless specified as sea sonal). (A) Within 50 nmi from shore in the Marine Species Coastal Mitigation Area. (1) Prohibited activities. The Navy must not conduct: Explosive training activities; explosive testing activities (with the exception of explosive Mine Countermeasure and Neutralization Testing activities); and non-explosive missile training activities. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00291 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 282 50 CFR Ch. II (10–1–22 Edition) § 218.144 (2) Seasonal awareness notification mes sages. The Navy must issue annual sea sonal awareness notification messages to alert Navy ships and aircraft to the possible presence of increased con centrations of Southern Resident killer whales from December 1 to June 30, humpback whales from May 1 to De cember 31, and gray whales from May 1 to November 30. For safe navigation and to avoid interactions with large whales, the Navy must instruct vessels to remain vigilant to the presence of Southern Resident killer whales, humpback whales, and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. Plat forms must use the information from the awareness notification messages to assist their visual observation of appli cable mitigation zones during training and testing activities and to aid in the implementation of procedural mitiga tion. (B) Within 20 nmi from shore in the Marine Species Coastal Mitigation Area. (1) Surface ship hull-mounted MF1 mid frequency active sonar. The Navy must not conduct more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Ma rine Sanctuary Mitigation Area com bined. (2) Mine Countermeasure and Neutral ization Testing from July 1 to September 30. To the maximum extent practical, the Navy must conduct explosive Mine Countermeasure and Neutralization Testing from July 1 to September 30 when operating within 20 nmi from shore. (3) Mine Countermeasure and Neutral ization Testing from October 1 to June 30. From October 1 to June 30, the Navy must not conduct more than one explo sive Mine Countermeasure and Neu tralization Testing event, not to exceed the use of 20 explosives from bin E4 and 3 explosives from bin E7 annually, and not to exceed the use of 60 explosives from bin E4 and 9 explosives from bin E7 over the seven-year period of the rule. (4) Large-caliber gunnery training ac tivities and non-explosive bombing train ing. The Navy must not conduct non explosive large-caliber gunnery train ing activities and non-explosive bomb ing training activities. (C) Within 12 nmi from shore in the Marine Species Coastal Mitigation Area. (1) Anti-submarine warfare tracking ex ercise—helicopter,—maritime patrol air craft,—ship, or—submarine training and anti-submarine warfare torpedo exercise— submarine training. The Navy must not conduct Anti-Submarine Warfare Tracking Exercise—Helicopter,—Mari time Patrol Aircraft,—Ship, or—Sub marine training activities (which in volve the use of mid-frequency or high frequency active sonar) or non-explo sive Anti-Submarine Warfare Torpedo Exercise—Submarine training activi ties (which involve the use of mid-fre quency or high-frequency active sonar). (2) Unmanned Underwater Vehicle Training. The Navy must not conduct more than one Unmanned Underwater Vehicle Training event within 12 nmi from shore at the Quinault Range Site. In addition, Unmanned Underwater Ve hicle Training events within 12 nmi from shore at the Quinault Range Site must be cancelled or moved to another training location if Southern Resident killer whales are detected at the planned training location during the event planning process, or immediately prior to the event, as applicable. (3) Explosive use during Mine Counter measure and Neutralization testing. Dur ing explosive Mine Countermeasure and Neutralization Testing, the Navy must not use explosives in bin E7 clos er than 6 nmi from shore in the Quinault Range Site. (4) Non-explosive small- and medium caliber gunnery training. The Navy must not conduct non-explosive small- and medium-caliber gunnery training ac tivities. (D) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(i)(A)(1); VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00292 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 283 National Marine Fisheries Service/NOAA, Commerce § 218.144 (a)(2)(i)(B); or (a)(2)(i)(C) of this sec tion, Navy personnel must obtain per mission from the appropriate des ignated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with ad vance notification and include infor mation about the event in its annual activity reports to NMFS. (ii) Olympic Coast National Marine Sanctuary Mitigation Area (year-round). (A) Surface ship hull-mounted MF1 mid-frequency active sonar during train ing. The Navy must not conduct more than 32 hours of surface ship hull mounted MF1 mid-frequency active sonar during training annually. (B) Non-explosive bombing training. The Navy must not conduct non-explo sive bombing training activities. (C) Surface ship hull-mounted MF1 mid-frequency active sonar during testing. The Navy must not conduct more than a total of 33 hours of surface ship hull mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitiga tion Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined. (D) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Counter measure and Neutralization Testing ac tivities. (E) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(ii)(A), (B), (C), or (D) of this section, Navy per sonnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must pro vide NMFS with advance notification and include information about the event in its annual activity reports to NMFS. (iii) Juan de Fuca Eddy Marine Species Mitigation Area (year-round). (A) Surface ship hull-mounted MF1 mid-frequency active sonar during testing. The Navy must not conduct more than a total of 33 hours of surface ship hull mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitiga tion Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined. (B) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Counter measure and Neutralization Testing ac tivities. (C) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(iii)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its an nual activity reports to NMFS. (iv) Stonewall and Heceta Bank Hump back Whale Mitigation Area (May 1–No vember 30). (A) Surface ship hull-mounted MF1 mid-frequency active sonar. The Navy must not use surface ship hull-mounted MF1 mid-frequency active sonar during training and testing from May 1 to No vember 30. (B) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Counter measure and Neutralization testing from May 1 to November 30. (C) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(iv)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its an nual activity reports to NMFS. (v) Point St. George Humpback Whale Mitigation Area (July 1–November 30). (A) Surface ship hull-mounted MF1 mid-frequency active sonar. The Navy must not use surface ship hull-mounted MF1 mid-frequency active sonar during training or testing from July 1 to No vember 30. (B) Explosive Mine Countermeasure and Neutralization testing. The Navy must VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00293 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 284 50 CFR Ch. II (10–1–22 Edition) § 218.144 not conduct explosive Mine Counter measure and Neutralization Testing from July 1 to November 30. (C) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(v)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its an nual activity reports to NMFS. (vi) Northern Puget Sound Gray Whale Mitigation Area (March 1–May 31). (A) Civilian port defense—homeland se curity anti-terrorism/force protection exer cises. The Navy must not conduct Civil ian Port Defense–Homeland Security Anti-Terrorism/Force Protection Exer cises from March 1 to May 31. (B) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraph (a)(2)(vi)(A) of this section, Navy personnel must obtain permission from the appropriate des ignated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with ad vance notification and include infor mation about the event in its annual activity reports to NMFS. (vii) Puget Sound and Strait of Juan de Fuca Mitigation Area (year-round unless specified as seasonal). (A) Active sonar use. The Navy must not use low-frequency, mid-frequency, or high-frequency active sonar during training or testing within the Puget Sound and Strait of Juan de Fuca Miti gation Area, unless a required element (i.e., a criterion necessary for the suc cess of the event) necessitates that the activity be conducted in NWTT Inland Waters during: (1) Unmanned underwater vehicle train ing. (2) Civilian port defense—homeland se curity anti-terrorism/force protection exer cises. (3) Activities conducted by Naval Sea Systems Command at designated loca tions. (4) Pierside sonar maintenance or test ing at designated locations. (B) Active sonar source levels. The Navy must use the lowest active sonar source levels practical to successfully accomplish each event. Naval units must obtain permission from the ap propriate designated Command author ity prior to commencing pierside main tenance or testing with hull-mounted mid-frequency active sonar. (C) Unmanned underwater vehicle training. The Navy must not conduct more than one Unmanned Underwater Vehicle Training activity annually at the Navy 3 OPAREA, Navy 7 OPAREA, and Manchester Fuel Depot (i.e., a maximum of one event at each loca tion). (D) Use of explosives—(1) Explosives during testing. The Navy must not use explosives during testing. (2) Explosives during training. The Navy must not use explosives during training except at the Hood Canal EOD Range and Crescent Harbor EOD Range during explosive mine neutralization activities involving the use of Navy divers. (3) Explosives in bin E4 or above. The Navy must not use explosives in bin E4 (>2.5–5 lb. net explosive weight) or above, and must instead use explosives in bin E0 (< 0.1 lb. net explosive weight) or bin E3 (>0.5–2.5 lb. net explosive weight). (4) Explosives in bin E3 during Feb ruary, March, and April at the Hood Canal EOD Range. During February, March, and April at the Hood Canal EOD Range, the Navy must not use ex plosives in bin E3 (>0.5–2.5 lb. net ex plosive weight), and must instead use explosives in bin E0 (< 0.1 lb. net explo sive weight). (5) Explosives in bin E3 during August, September, and October at the Hood Canal EOD Range. During August, Sep tember, and October at the Hood Canal EOD Range, the Navy must not use ex plosives in bin E3 (>0.5–2.5 lb. net ex plosive weight) and must instead use explosives in bin E0 (< 0.1 lb. net explo sive weight) to the maximum extent practical unless necessitated by mis sion requirements. (6) Explosives at the Crescent Harbor EOD Range. At the Crescent Harbor EOD Range, the Navy must conduct ex plosive activities at least 1,000 m from the closest point of land. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00294 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 285 National Marine Fisheries Service/NOAA, Commerce § 218.144 (E) Non-explosive live fire events. The Navy must not conduct non-explosive live fire events in the mitigation area (except firing blank weapons), includ ing gunnery exercises, missile exer cises, torpedo exercises, bombing exer cises, and Kinetic Energy Weapon Test ing. (F) Coordination with Navy biologists. Navy event planners must coordinate with Navy biologists during the event planning process prior to conducting the activities listed in paragraphs (a)(2)(vii)(F)(1), (2), (3), and (4) of this section. Navy biologists must work with NMFS and must initiate commu nication with the appropriate marine mammal detection networks to deter mine the likelihood of applicable ma rine mammal species presence in the planned training location. Navy biolo gists must notify event planners of the likelihood of species presence. To the maximum extent practical, Navy plan ners must use this information when planning specific details of the event (e.g., timing, location, duration) to avoid planning activities in locations or seasons where species presence is ex pected. The Navy must ensure environ mental awareness of event partici pants. Environmental awareness will help alert participating crews to the possible presence of applicable species in the training location. Lookouts must use the information to assist vis ual observation of applicable mitiga tion zones and to aid in the implemen tation of procedural mitigation. Un manned Underwater Vehicle Training events at the Navy 3 OPAREA, Man chester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and Navy 7 OPAREA must be cancelled or moved to another training location if the presence of Southern Resident killer whales is reported through avail able monitoring networks during the event planning process, or immediately prior to the event, as applicable. (1) Unmanned underwater vehicle train ing. Unmanned Underwater Vehicle Training at the Navy 3 OPAREA, Man chester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and Navy 7 OPAREA (for Southern Resident killer whales); (2) Civilian port defense—homeland se curity anti-terrorism/force protection exer cises. Civilian Port Defense—Homeland Security Anti-Terrorism/Force Protec tion Exercises (for Southern Resident killer whales and gray whales); (3) Explosive mine neutralization activi ties involving the use of Navy divers. Ex plosive mine neutralization activities involving the use of Navy divers (for Southern Resident killer whales); and (4) Small boat attack exercises. Small Boat Attack Exercises, which involve firing blank small-caliber weapons (for Southern Resident killer whales and gray whales). (G) Seasonal awareness notification messages. The Navy must issue annual seasonal awareness notification mes sages to alert Navy ships and aircraft operating within the Puget Sound and Strait of Juan de Fuca Mitigation Area to the possible presence of concentra tions of Southern Resident killer whales from July 1 to November 30 in Puget Sound and the Strait of Juan de Fuca, and concentrations of gray whales from March 1 to May 31 in the Strait of Juan de Fuca and northern Puget Sound. For safe navigation and to avoid interactions with large whales, the Navy must instruct vessels to remain vigilant to the presence of Southern Resident killer whales and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. Platforms must use the information from the awareness notification mes sages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of proce dural mitigation. (H) National security exception. Should national security require that the Navy cannot comply with the restric tions in paragraphs (a)(2)(vii)(A), (B), (C), (D), or (E) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must pro vide NMFS with advance notification and include information about the event in its annual activity reports to NMFS. (3) Availability for Subsistence Use. The Navy must notify the following Alas kan Native communities of the issuance of Notices to Mariners of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00295 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 286 50 CFR Ch. II (10–1–22 Edition) § 218.145 Navy operations that involve restrict ing access in the Western Behm Canal at least 72 hours in advance: Central Council of the Tlingit and Haida Indian Tribes, Ketchikan Indian Corporation, Organized Village of Saxman, and Metlakatla Indian Community, An nette Island Reserve. (b) [Reserved] § 218.145 Requirements for monitoring and reporting. (a) Notification of take. Navy per sonnel must notify NMFS immediately (or as soon as operational security con siderations allow) if the specified activ ity identified in § 218.140 is thought to have resulted in the mortality or seri ous injury of any marine mammals, or in any Level A harassment or Level B harassment of marine mammals not identified in this subpart. (b) Monitoring and reporting under the LOAs. The Navy must conduct all mon itoring and reporting required under the LOAs, including abiding by the U.S. Navy’s Marine Species Monitoring Program. Details on program goals, ob jectives, project selection process, and current projects are available at www.navymarinespeciesmonitoring.us. (c) Notification of injured, live strand ed, or dead marine mammals. The Navy must consult the Notification and Re porting Plan, which sets out notifica tion, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected. The No tification and Reporting Plan is avail able at https://www.fisheries.noaa.gov/ national/marine-mammal-protection/inci dental-take-authorizations-military-readi ness-activities. (d) Annual NWTT Study Area marine species monitoring report. The Navy must submit an annual report of the NWTT Study Area monitoring, which will be included in a Pacific-wide moni toring report including results specific to the NWTT Study Area, describing the implementation and results from the previous calendar year. Data col lection methods must be standardized across Pacific Range Complexes includ ing the Mariana Islands Training and Testing (MITT), Hawaii-Southern Cali fornia Training and Testing (HSTT), NWTT, and Gulf of Alaska (GOA) Study Areas to allow for comparison in different geographic locations. The re port must be submitted to the Direc tor, Office of Protected Resources, NMFS, either within three months after the end of the calendar year, or within three months after the conclu sion of the monitoring year, to be de termined by the adaptive management process. NMFS will submit comments or questions on the report, if any, with in three months of receipt. The report will be considered final after the Navy has addressed NMFS’ comments, or three months after submittal of the draft if NMFS does not provide com ments on the draft report. This report will describe progress of knowledge made with respect to intermediate sci entific objectives within the NWTT Study Area associated with the Inte grated Comprehensive Monitoring Pro gram (ICMP). Similar study questions must be treated together so that progress on each topic can be summa rized across all Navy ranges. The re port need not include analyses and con tent that does not provide direct as sessment of cumulative progress on the monitoring plan study questions. This will continue to allow the Navy to pro vide a cohesive monitoring report cov ering multiple ranges (as per ICMP goals), rather than entirely separate reports for the NWTT, HSTT, GOA, and MITT Study Areas. (e) NWTT Annual Training Exercise Report and Annual Testing Activity Re port. Each year, the Navy must submit two preliminary reports (Quick Look Reports) detailing the status of appli cable sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. The Navy must also submit detailed re ports (NWTT Annual Training Exercise Report and Annual Testing Activity Report) to the Director, Office of Pro tected Resources, NMFS, within three months after the one-year anniversary of the date of issuance of the LOAs. NMFS will submit comments or ques tions on the reports, if any, within one month of receipt. The reports will be considered final after the Navy has ad dressed NMFS’ comments, or one month after submittal of the draft if NMFS does not provide comments on the draft reports. The NWTT Annual VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00296 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 287 National Marine Fisheries Service/NOAA, Commerce § 218.146 Training Exercise Report and Annual Testing Activity Report can be consoli dated with other exercise and activity reports from other range complexes in the Pacific Ocean for a single Pacific Training Exercise and Testing Activity Report, if desired. The annual reports must contain a summary of all sound sources used (total hours or quantity of each bin of sonar or other non-impul sive source; total annual number of each type of explosive; and total an nual expended/detonated rounds (mis siles, bombs, sonobuoys, etc.) for each explosive bin). The annual reports will also contain both the current year’s sonar and explosive use data as well as cumulative sonar and explosive use quantity from previous years’ reports. Additionally, if there were any changes to the sound source allowance in a given year, or cumulatively, the report must include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the 2020 NWTT FSEIS/OEIS and MMPA final rule. The annual report must also in clude details regarding specific require ments associated with the mitigation areas listed in § 218.144(a)(2). The final annual/close-out report at the conclu sion of the authorization period (year seven) will serve as the comprehensive close-out report and include both the final year annual incidental take com pared to annual authorized incidental take as well as cumulative seven-year incidental take compared to seven-year authorized incidental take. The Annual Training Exercise Report and Annual Testing Activity Report must include the following information. (1) Summary of sources used. This sec tion of the report must include the fol lowing information summarized from the authorized sound sources used in all training and testing events: (i) Sonar and other transducers. Total annual hours or quantity (per the LOA) of each bin of sonar or other trans ducers, and (ii) Explosives. Total annual expended/ detonated ordinance (missiles, bombs, sonobuoys, etc.) for each explosive bin. (2) [Reserved] (f) Annual classified reports. Within the annual classified training exercise and testing activity reports, separate from the unclassified reports described in paragraphs (a) through (e) of this section, the Navy must specifically in clude the information described in paragraphs (f)(1) and (2) of this section. (1) Olympic Coast National Marine Sanctuary Mitigation Area. Total hours of authorized low-frequency, mid-fre quency, and high-frequency active sonar (all bins, by bin) used during training and testing annually within the Olympic Coast National Marine Sanctuary Mitigation Area; and (2) Surface ship hull-mounted MF1 mid frequency active sonar. Total hours of surface ship hull-mounted MF1 mid frequency active sonar used in the fol lowing mitigation areas: (i) Testing annually in three combined areas. Testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, the Juan de Fuca Eddy Marine Species Mitigation Area, and the Olympic Coast National Marine Sanctuary Mitigation Area combined; (ii) Stonewall and Heceta Bank Hump back Whale Mitigation Area. Training and testing from May 1 to November 30 within the Stonewall and Heceta Bank Humpback Whale Mitigation Area; and (iii) Point St. George Humpback Whale Mitigation Area. Training and testing from July 1 to November 30 within the Point St. George Humpback Whale Mitigation Area. (g) Final close-out report. The final (year seven) draft annual/close-out re port must be submitted within three months after the expiration of this sub part to the Director, Office of Pro tected Resources, NMFS. NMFS will submit comments on the draft close out report, if any, within three months of receipt. The report will be consid ered final after the Navy has addressed NMFS’ comments, or three months after submittal of the draft if NMFS does not provide comments. § 218.146 Letters of Authorization. (a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain LOAs in accordance with § 216.106 of this chapter. (b) An LOA, unless suspended or re voked, may be effective for a period of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00297 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 288 50 CFR Ch. II (10–1–22 Edition) § 218.147 time not to exceed the expiration date of this subpart. (c) If an LOA expires prior to the ex piration date of this subpart, the Navy may apply for and obtain a renewal of the LOA. (d) In the event of projected changes to the activity or to mitigation, moni toring, or reporting (excluding changes made pursuant to the adaptive man agement provision of § 218.147(c)(1)) re quired by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as de scribed in § 218.147. (e) Each LOA will set forth: (1) Permissible methods of incidental taking; (2) Geographic areas for incidental taking; (3) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species and stocks of marine mammals and their habitat; and (4) Requirements for monitoring and reporting. (f) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the find ings made for the total taking allow able under the regulations in this sub part. (g) Notice of issuance or denial of the LOA(s) will be published in the FED ERAL REGISTER within 30 days of a de termination. § 218.147 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.146 for the activity identified in § 218.140(c) may be renewed or modified upon request by the appli cant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOAs were implemented. (b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or stock or years), NMFS may publish a notice of planned LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.146 may be modi fied by NMFS under the following cir cumstances: (1) After consulting with the Navy re garding the practicability of the modi fications, NMFS may modify (includ ing adding or removing measures) the existing mitigation, monitoring, or re porting measures if doing so creates a reasonable likelihood of more effec tively accomplishing the goals of the mitigation and monitoring, as part of an adaptive management process. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s moni toring report and annual exercise re ports from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by this subpart or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) If NMFS determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.146, an LOA may be modified without prior notice or op portunity for public comment. Notice VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00298 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 289 National Marine Fisheries Service/NOAA, Commerce § 218.230 would be published in the FEDERAL REGISTER within 30 days of the action. § 218.148 [Reserved] Subparts P–W [Reserved] Subpart X—Taking and Importing of Marine Mammals; U.S. Navy Surveillance Towed Array Sensor System Low Fre quency Active (SURTASS LFA) Sonar Training and Testing in the Central and Western North Pacific and Eastern Indian Oceans EFFECTIVE DATE NOTE: At 84 FR 40208, Aug. 13, 2019, subpart X was added, effective from Aug. 12, 2019, through Aug. 13, 2026. § 218.230 Specified activity, level of taking, and species/stocks. Regulations in this subpart apply to the U.S. Navy (Navy) for the taking of marine mammals that occurs inci dental 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. WNP. IND. Common bottlenose dolphin ........................................................ 4-Islands. Hawaii Island. Hawaii Pelagic. IA. IND. Japanese Coastal. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00299 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 290 50 CFR Ch. II (10–1–22 Edition) § 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—Continued Species Stock 1 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. WNP. IND. Rough-toothed dolphin ................................................................ Hawaii. IND. WNP. Short-finned pilot whale ............................................................... Hawaii. IND. WNP Northern Ecotype. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00300 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 291 National Marine Fisheries Service/NOAA, Commerce § 218.233 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 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. Regulations in this subpart are effec tive from August 13, 2019, through Au gust 12, 2026. § 218.232 Permissible methods of tak ing. Under a Letter or Letters of Author ization (LOA) issued pursuant to §§ 216.106 of this chapter and 218.237, the Holder of the LOA (hereinafter ‘‘Navy’’) may incidentally, but not in tentionally, take marine mammals within the area described in § 218.230 by Level B harassment associated with SURTASS LFA sonar training and testing provided the activity is in com pliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA. § 218.233 Prohibitions. Notwithstanding takings con templated in § 218.230 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.237, no person in con nection with the activities described in § 218.230 may: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 218.237; (b) Take any marine mammal not specified in such LOAs; (c) Take any marine mammal speci fied in such LOAs in any manner other than Level B harassment; (d) Take any marine mammal speci fied in the LOA if NMFS makes a de termination that such taking is hav ing, or may have, more than a neg ligible impact on the species or stocks concerned; or (e) Take a marine mammal specified in the LOA if NMFS determines such taking is having, or may have, an unmitigable adverse impact on avail ability of the species or stock for tak ing for subsistence uses. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00301 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 292 50 CFR Ch. II (10–1–22 Edition) § 218.234 § 218.234 Mitigation. When conducting activities identified in § 218.230, the mitigation measures de scribed in this section and in any LOA issued under §§ 216.106 of this chapter and 218.237 must be implemented. (a) Personnel training—lookouts. The Navy will utilize one or more trained marine biologists qualified in con ducting at-sea marine mammal visual monitoring to conduct at-sea marine mammal visual monitoring training and qualify designated ship personnel to conduct at-sea visual monitoring. Training will ensure quick and effec tive communication within the com mand structure in order to facilitate implementation of protective measures if they detect marine mammals and may be accomplished either in-person, or via video training. (b) General operating procedures. (1) Prior to SURTASS LFA sonar activi ties, the Navy will promulgate execu tive guidance for the administration, execution, and compliance with the en vironmental regulations under these regulations and LOA. (2) The Navy must not transmit the SURTASS LFA sonar signal at a fre quency greater than 500 Hz. (c) 2,000-yard LFA sonar mitigation zone; suspension and delay. If a marine mammal is detected, through moni toring required under § 218.235, within or about to enter within 2,000 yards of the SURTASS LFA source (i.e., the LFA mitigation zone), the Navy must immediately delay or suspend SURTASS LFA sonar transmissions. (d) Resumption of SURTASS LFA sonar transmissions. (1) The Holder of a LOA may not resume SURTASS LFA sonar transmissions earlier than 15 minutes after: (i) All marine mammals have left the area of the 2,000-yard LFA sonar miti gation zone; and (ii) There is no further detection of any marine mammal within the 2,000 yard LFA sonar mitigation zone as de termined by the visual, passive acous tic, and active acoustic high frequency monitoring described in § 218.235. (2) [Reserved] (e) Ramp-up procedures for the high frequency marine mammal monitoring (HF/M3) sonar required under § 218.235. (1) The Navy must ramp up the HF/M3 sonar power level beginning at a max imum source sound pressure level of 180 dB: re 1 μPa at 1 meter in 10-dB incre ments to operating levels over a period of no less than five minutes: (i) At least 30 minutes prior to any SURTASS LFA sonar transmissions; and (ii) Anytime after the HF/M3 source has been powered down for more than two minutes. (2) The Navy must not increase the HF/M3 sound pressure level once a ma rine mammal is detected; ramp-up may resume once marine mammals are no longer detected. (f) Geographic restrictions on the SURTASS LFA sonar sound field. (1) LFA sonar training and testing activi ties must be conducted such that: (i) The received level of SURTASS LFA sonar transmissions will not ex ceed 180 dB re: 1 μPa rms within 22 km (12 nmi) from any emergent land, in cluding offshore islands; (ii) The received level of SURTASS LFA sonar transmissions will not ex ceed 180 dB re: 1 μPa rms at a distance of 1 km (0.5 nmi) seaward of the outer perimeter of any Offshore Biologically Important Area (OBIA) designated in the Study Area for SURTASS LFA sonar in paragraph (f)(2) of this section, or subsequently identified through the Adaptive Management process speci fied in § 218.241, during the period speci fied. The boundaries and periods of such OBIAs will be kept on file in NMFS’ Office of Protected Resources and on its website at https:// www.fisheries.noaa.gov/national/marine mammal-protection/incidental-take-au thorizations-military-readiness-activities. (iii) No more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be conducted within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1–4 and 148 hours in years 5–7) unless the following condi tions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain per mission from the appropriate des ignated Command authority prior to VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00302 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 293 National Marine Fisheries Service/NOAA, Commerce § 218.235 commencement of the activity. The Navy will provide NMFS with notifica tion as soon as is practicable and in clude the information (e.g., sonar hours) in its annual activity reports submitted to NMFS. (iv) No activities with the SURTASS LFA system will occur within terri torial seas of foreign nations, which are areas from 0 up to 12 nmi from shore, depending on the distance that individual nations claim; and (v) No activities with the SURTASS LFA sonar system will occur in the waters of Penguin Bank, Hawaii (de fined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 μPa rms. (2) Offshore Biologically Important Areas (OBIAs) for marine mammals (with specified periods) for SURTASS LFA sonar training and testing activi ties include the following (Table 1 to 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 Whale). Western North Pacific ................................. December to May. 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 live-stranded (or milling) mammals. The Navy must consult the Notification and Reporting Plan, which sets out the requirements for when live stranded marine mammals are reported in the Study Area. The Stranding and Notifi cation Plan is available at: https:// www.fisheries.noaa.gov/action/incidental take-authorization-us-navy-operations surveillance-towed-array-sensor-system-0. § 218.235 Requirements for moni toring. (a) The Navy must: (1) Conduct visual monitoring from the ship’s bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset). During train ing and testing activities that employ SURTASS LFA sonar in the active mode, the SURTASS vessels must have Lookouts to maintain a topside watch with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to con firm the sighting and potentially iden tify the marine mammal species. (2) Use the passive SURTASS sonar component to detect vocalizing marine mammals; and (3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the LFA mitigation zone, subject to the ramp-up requirements in § 216.234(e) of this chapter. (b) Monitoring under paragraph (a) of this section must: (1) Commence at least 30 minutes be fore the first SURTASS LFA sonar training and testing transmission; (2) Continue between transmission pings; and (3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar training and testing transmission, or, if marine mammals are exhibiting unusual changes in behavioral patterns, until behavior patterns return to normal or conditions prevent continued observa tions. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00303 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 294 50 CFR Ch. II (10–1–22 Edition) § 218.236 (c) The Navy must designate quali fied on-site individuals to conduct the mitigation, monitoring, and reporting activities specified in these regulations and LOA issued under §§ 216.106 of this chapter and 218.237. (d) The Navy must continue to assess data from the Marine Mammal Moni toring Program and work toward mak ing some portion of that data, after ap propriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available. (e) The Navy must collect ambient noise data and will explore the feasi bility of declassifying and archiving the ambient noise data for incorpora tion into appropriate ocean noise budg et efforts. (f) The Navy must conduct all moni toring required under LOAs. § 218.236 Requirements for reporting. (a) The Navy must submit classified and unclassified annual training and testing activity reports to the Direc tor, Office of Protected Resources, NMFS, no later than 90 days after the end of each year covered by the LOA beginning on the date of effectiveness of a LOA. Each annual training and testing activity report will include a summary of all active-mode training and testing activities completed during that year. At a minimum, each classi fied training and testing activity re port must contain the following infor mation: (1) Dates, times, and location of each vessel during each training and testing activity; (2) Information on sonar trans missions during each training and test ing activity; (3) Results of the marine mammal monitoring program specified in the LOA; and (4) Estimates of the percentages of marine mammal species and stocks af fected (both for the year and cumula tively for each successive year) covered by the LOA. (b) The seventh annual report must be prepared as a final comprehensive report, which will include information for the final year as well as the prior six years of activities under the rule. This final comprehensive report must also contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar, and be submitted to the Di rector, Office of Protected Resources, NMFS as described in this paragraph (b). (c) The Navy will continue to assess the data collected by its undersea ar rays and work toward making some portion of that data, after appropriate security reviews, available to sci entists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available. (d) The Navy must consult the Notifi cation and Reporting Plan, which sets out notification, reporting, and other requirements for when dead, injured, or live stranded marine mammals are re ported in the Study Area. The Strand ing and Notification Plan is available at: https://www.fisheries.noaa.gov/action/ incidental-take-authorization-us-navy-op erations-surveillance-towed-array-sensor system-0. § 218.237 Letter of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, Navy must apply for and obtain a Letter of Authorization (LOA). (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, Navy may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA (excluding changes made pursuant to the adaptive management provision of § 218.239), the Navy must apply for and obtain a modification of the LOA as described in § 218.238. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00304 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 295 National Marine Fisheries Service/NOAA, Commerce Pt. 219 (2) Means of effecting the least prac ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA will be published in the FEDERAL REGISTER within thirty days of a deter mination. § 218.238 Renewals and modifications of a Letter of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.237 for the activity identified in § 218.230 may be renewed or modified upon request by the appli cant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) were implemented. (b) For LOA modification or renewal requests by the Navy that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that do not result in more than a minor change in the total estimated number of takes (or distribu tion by species or stock or years), NMFS may publish notification of a planned LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.237 may be modi fied by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.237, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. PART 219—REGULATIONS GOV ERNING THE TAKING AND IM PORTING OF MARINE MAM MALS Subpart A—Taking Marine Mammals Inci dental to Southwest Fisheries Science Center Fisheries Research Sec. 219.1 Specified activity and specified geo graphical region. 219.2 Effective dates. 219.3 Permissible methods of taking. 219.4 Prohibitions. 219.5 Mitigation requirements. 219.6 Requirements for monitoring and re porting. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00305 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R