Title 50—Wildlife and Fisheries--Volume 1
PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
§ 218.1   Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct 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 incidental to construction activities including 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 adjacent Navy facilities.
§ 218.2   Effective dates.
Regulations in this subpart are effective 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 and 218.7, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, 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 contemplated in §  218.3 and authorized by a LOA issued under §§  216.106 of this chapter and 218.7, it is unlawful for any person to do any of the following in connection with the activities described in §  218.1 may:
(1) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §  216.106 of this chapter and §  218.7;
(2) Take any marine mammal not specified in such LOA;
(3) Take any marine mammal specified 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 negligible 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 adverse 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 mitigation measures shall include but are not limited to:
(1) A copy of any issued LOA must be in the possession 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, the monitoring team, and Navy staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, the marine mammal monitoring protocol, and operational procedures;
(3) For in-water heavy machinery work other than pile driving, if a marine mammal comes within 10 m, the Navy shall cease operations and reduce vessel speed to the minimum level required 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 chapter and 218.7. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease;
(6) The Navy shall deploy protected species observers (observers) as indicated in its Marine Mammal Monitoring 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 driving 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 implement 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 activity. Pre-activity monitoring shall be conducted for 30 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals 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. If a marine mammal is observed within the shutdown zone, a soft-start cannot proceed until the animal has left the zone or has not been observed for 15 minutes. Monitoring shall occur throughout the time required to drive a pile. If work ceases for more than 30 minutes, the pre-activity monitoring of the shutdown zones must commence. A determination 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 mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually 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 species for which incidental take is not authorized or a species for which incidental take has been authorized but the authorized number of takes has been met, entering or within the harassment 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 driving 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 observer qualifications:
(i) Independent observers are required;
(ii) At least one observer must have prior experience working as an observer;
(iii) Other observers may substitute education (degree in biological science or related field) or training for experience;
(iv) Where a team of three or more observers are required, one observer shall be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer;
(v) Personnel who are engaged in construction 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 driving 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 driving at Pier 3, Pier 12, and Craney Island, and at least four PSOs during vibratory pile driving at Lambert's Point. For all other pile driving activities, the Navy shall deploy a minimum of two PSOs.
(c) Observers shall be trained in marine mammal identification and behaviors. Observers shall have no other construction-related tasks while conducting monitoring.
(d) For all pile driving activities, a minimum of two observers shall be stationed 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 required monitoring for each marine structure maintenance, pile replacement, and upgrades project. The report must detail the monitoring protocol and summarize the data recorded during monitoring. If no comments are received from NMFS within 30 days, the draft report will constitute the final report. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. Specifically, the report must include:
(1) Dates and times (begin and end) of all marine mammal monitoring;
(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 vibratory);
(3) Environmental conditions during monitoring periods (at beginning and end of observer shift and whenever conditions change significantly), including Beaufort sea state and any other relevant 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 removal was occurring at time of sighting;
(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 sighting (if pile driving or removal was occurring at time of sighting);
(8) Description of any marine mammal behavior patterns during observation, 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 detected within the harassment zones, by species;
(10) Detailed information about any implementation of any mitigation triggered ( e.g., shutdowns and delays), a description of specific actions that ensued, and resulting behavior of the animal, if any;
(11) Description of attempts to distinguish 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 involved in the construction activities discover an injured or dead marine mammal, the Navy shall report the incident to the Office of Protected Resources (OPR) (301-427-8401), NMFS and to the Greater Atlantic Region New England/Mid-Atlantic Regional Stranding 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 authorization. The Navy must not resume their activities until notified by NMFS.
(1) The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
(2) [Reserved]
§ 218.7   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, 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 obtain a modification of the LOA as described in §  218.8.
(e) The LOA shall set forth the following information:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species, its habitat, and on the availability of the species for subsistence 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 findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within 30 days of a determination.
§ 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 applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations, and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, 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 public 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 circumstances:
(1) NMFS may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with Navy regarding the practicability 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 regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in a LOA:
(A) Results from Navy's monitoring from previous years;
(B) Results from other marine mammal and/or sound research or studies;
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs; and
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of proposed LOA in the Federal Register and solicit public comment.
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in a LOA issued pursuant to §  216.106 of this chapter and §  218.7, a LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
§ 218.9   [Reserved]
§ 218.10   Specified activity and geographical 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 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 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 occurs incidental to the Navy conducting training and testing activities, including:
(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 effective from July 7, 2022, through July 7, 2029.
§ 218.12   Permissible methods of taking.
(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 intentionally, 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 activities, provided the activity is in compliance with all terms, conditions, and requirements 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 )
§ 218.13   Prohibitions.
Except for incidental takings contemplated 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 following in connection with the activities listed in § 218.10(c):
(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 218.16;
(b) Take any marine mammal not specified in § 218.12(b);
(c) Take any marine mammal specified 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
(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 identified 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 mitigation 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 activity takes place within the PMSR Study Area for each applicable activity category or stressor category and includes acoustic stressors ( i.e., weapons firing noise), explosive stressors ( i.e., medium-caliber and large-caliber projectiles, 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-explosive missiles and rockets; and non-explosive bombs).
(1) Environmental awareness and education. Navy personnel (including civilian 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 include: Introduction to the U.S. Navy Afloat Environmental Compliance Training Series, Marine Species Awareness Training, and U.S. Navy Protective Measures Assessment Protocol.
(2) Weapons firing noise. Weapons firing noise associated with large-caliber gunnery activities.
(i) Number of Lookouts and observation platform. One Lookout will be positioned on the ship conducting the firing. 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 z one 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 activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of weapons firing.
(B) During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will 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 mitigation zone prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from weapons 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 activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(3) Explosive medium-caliber and large-caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout will be on the vessel or aircraft conducting the activity. 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 activity, Navy personnel positioned on those assets ( e.g., safety observers, evaluators) will support 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 are as follows: 200 yd (182.88 m) around the intended impact location for air-to-surface 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 intended impact location for surface-to-surface activities using explosive large-caliber projectiles.
(A) Prior to the initial start of the activity (e.g., when maneuvering on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.
(B) During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will 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 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 vessel-based firing; or
( 4 ) Impact location transit. 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.
(D) After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical ( e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. If additional platforms are supporting this activity ( e.g., providing range clearance), Navy personnel on these assets will assist in the visual observation of the area where detonations occurred.
(4) Explosive missiles and rockets. Aircraft-deployed explosive missiles and rockets. 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 positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel positioned on those assets ( e.g., safety observers, evaluators) will support 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 are as follows: 900 yd (822.96 m) around the intended 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 missiles with 21-500 lb net explosive weight.
(A) Prior to the initial start of the activity ( e.g., during a fly-over of the mitigation zone). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.
(B) During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease firing.
(C) Commencement/recommencement conditions after a marine mammal sighting 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 constrained by fuel restrictions or mission-essential follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. If additional platforms are supporting this activity ( e.g., providing range clearance), Navy personnel on these assets will assist in the visual observation of the area where detonations 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 positioned in an aircraft conducting the activity. If additional platforms are participating in the activity, Navy personnel positioned on those assets ( e.g., safety observers, evaluators) will support observing the relevant mitigation zone for marine mammals and other applicable biological resources while performing their regular duties.
(ii) Mitigation z one and requirements. The relevant mitigation zones is 2,500 yd (2,286 m) around the intended target.
(A) Prior to the initial start of the activity (e.g., when arriving on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of bomb deployment.
(B) During the activity (e.g., during target approach). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease bomb deployment.
(C) Commencement/recommencement conditions after a marine mammal sighting 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 activities 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 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 constrained by fuel restrictions or mission-essential follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. If additional platforms are supporting this activity ( e.g., providing range clearance), Navy personnel on these assets will assist in the visual observation of the area where detonations occurred.
(6) Vessel movement. The mitigation will not be required if: the vessel's safety is threatened; the vessel is restricted in its ability to maneuver ( e.g., during launching and recovery of aircraft or landing craft, during towing activities, when mooring); the vessel is submerged or operated autonomously; or if impracticable based on mission requirements ( e.g., during Amphibious Assault and Amphibious Raid exercises).
(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 underway 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 reporting procedures.
(7) Small-, medium-, and large-caliber non-explosive practice munitions. Mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout will be positioned 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 activity (e.g., when maneuvering on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.
(B) During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease firing.
(C) Commencement/recommencement conditions after a marine mammal sighting 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 vessel-based firing;
( 4 ) Impact location transit. 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.
(8) Non-explosive missiles and rockets. Aircraft-deployed non-explosive missiles and rockets. Mitigation applies to activities using a maritime surface target at ranges of up to 75 nmi (139 km).
(i) Number of Lookouts and observation platform. One Lookout will be positioned 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 activity (e.g., during a fly-over of the mitigation zone). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.
(B) During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease firing.
(C) Commencement/recommencement conditions after a marine mammal sighting 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 firing) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 positioned 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 activity (e.g., when arriving on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of bomb deployment.
(B) During the activity (e.g., during approach of the target or intended minefield location). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals and, if floating vegetation or marine mammals are observed, Navy personnel will cease bomb deployment.
(C) Commencement/recommencement conditions after a marine mammal sighting 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 observed exiting the mitigation zone;
( 2 ) Determined to have exited. The animal 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 activities 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 sighting.
(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 scheduled 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 and monitoring methods, in cooperation with NMFS, if any incidents of injury or mortality of a pinniped are discovered 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 addition 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 message to alert Navy ships and aircraft operating throughout the PMSR Study Area to the possible presence of increased 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 become vulnerable to vessel strikes.
(iii) Navy personnel will use the information from the awareness notification message to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(2) Gray whale awareness notification message. (i) Navy personnel will issue a seasonal awareness notification message to alert Navy ships and aircraft operating through the PMSR Study Area to the possible presence of increased 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 become vulnerable to vessel strikes.
(iii) Navy personnel will use the information from the awareness notification message to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(3) Fin whale awareness notification message. (i) Navy personnel will issue a seasonal awareness notification message to alert Navy ships and aircraft operating throughout the PMSR Study Area to the possible presence of increased 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 become vulnerable to vessel strikes.
(iii) Navy personnel will use the information from the awareness notification message to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation 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 considerations allow) if the specified activity identified in § 218.10 is thought to have resulted in the serious injury or mortality 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 monitoring and reporting required under the LOA. The Navy will coordinate and discuss with NMFS how monitoring in the PMSR Study Area could contribute to the Navy's Marine Species Monitoring Program.
(c) Notification of injured, live stranded, or dead marine mammals. Navy personnel will consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected. The Notification and Reporting Plan is available at https://www.fisheries.noaa.gov/action/incidental-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 baseline pinniped distribution/abundance and potential changes in pinniped use of these beaches after launch events. Marine mammal monitoring shall include 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 environmental 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 monitoring 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 annual report to NMFS of the SNI rocket and missile launch activities. The draft annual monitoring report will be submitted to the Director, Office of Protected Resources, NMFS, within 3 months after the end of the reporting year. NMFS will submit comments or questions on the draft monitoring report, 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 submission of the draft if NMFS does not provide comments on the draft report. The report will summarize the launch events conducted during the year; assess any direct impacts to pinnipeds from launch events; assess any cumulative impacts on pinnipeds from launch events; and, summarize pinniped monitoring and research activities conducted on SNI and any findings 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 anniversary of the date of issuance of the LOA. NMFS will submit comments or questions on the report, if any, within 1 month of receipt. The report will be considered final after the Navy has addressed 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 annual expended/detonated rounds (missiles, bombs, etc. ) for each explosive bin). The annual report will also contain both the current year's data as well as explosive use quantity from previous years' reports. Additionally, if there were any changes to the explosive allowance in a given year, or cumulatively, 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 Environment 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 40888, 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 authorization as well as a cumulative 7-year annual use compared to 7-year authorization. The detailed reports will contain the information identified in paragraphs (f)(1) and (2) of this section.
(1) Explosives. This section of the report will include the following information for explosive activities completed that year.
(i) Activity information gathered for each explosive event.
(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 exercise.
(D) Total annual expended/detonated ordnance ( i.e., missile, bombs etc. ) number 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 illustrating how marine mammal detection was conducted.
(ii) Individual marine mammal observation (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 maintained visual contact with marine mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, 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 language 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 explosives were detonating in the water, indicate munition type in use at time of marine mammal detection.
(2) Summary of sources used. This section of the report will include the following 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 Resources, NMFS. NMFS will submit comments on the draft close-out report, 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 submittal 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 revoked, 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 obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 218.17(c)(1)) required by an LOA issued under this subpart, the Navy will apply for and obtain a modification of the LOA as described 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 practicable 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 is consistent with the findings made for the total taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) will be published in the Federal Register within 30 days of a determination.
§ 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 applicant, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations 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 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 circumstances:
(1) Adaptive management. After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's annual monitoring report and annual exercise report from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies;
(C) Results from specific stranding investigations; or
(D) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of a new 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 chapter and 218.16, an LOA may be modified without prior notice or opportunity for public comment. Notice will be published in the Federal Register within 30 days of the action.
§§ 218.18-218.19   [Reserved]
§ 218.60   Specified activity and geographical region.
(a) Regulations in this subpart apply only to the U.S. Air Force (USAF) 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 USAF under this subpart may be authorized in a Letter of Authorization (LOA) only if it occurs within the Eglin Gulf Test and Training Range (EGTTR). The EGTTR is located adjacent to Santa Rosa, Okaloosa, and Walton Counties and includes property on Santa Rosa Island and Cape San Blas. The EGTTR is the airspace controlled by Eglin Air Force Base (AFB) over the Gulf of Mexico, beginning 3 nautical miles (nmi) from shore, and the underlying Gulf of Mexico waters. The EGTTR extends southward and westward off the coast of Florida and encompasses approximately 102,000 square nautical miles (nmi 2 ). It is subdivided into blocks of airspace that consist of Warning Areas W-155, W-151, W-470, W-168, and W-174 and Eglin Water Test Areas 1 through 6. The two primary components of the EGTTR Complex are Live Impact Area and East Live Impact Area.
(c) The taking of marine mammals by the USAF is only authorized if it occurs incidental to the USAF conducting training and testing activities, including air warfare and surface warfare training and testing activities.
§ 218.61   Effective dates.
Regulations in this subpart are effective from April 13, 2023, through April 13, 2030.
§ 218.62   Permissible methods of taking.
(a) Under an LOA issued pursuant to § 216.106 of this subchapter and § 218.66, the Holder of the LOA (hereinafter “USAF”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.60(b) by Level A and Level B harassment (defined in section 3(18)(B) of the Marine Mammal Protection Act) associated training and testing activities described in § 218.60(c) provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
(b) The incidental take of marine mammals by the activities listed in § 218.60(c) is limited to the species and stocks listed in table 1 to this paragraph (b). Only Level B Harassment of Rice's whales is authorized. Level A Harassment and level B Harassment of the two dolphin stocks are authorized.
Table 1 to Paragraph (b)
§ 218.63   Prohibitions.
(a) Except for permissible incidental take described in § 218.62(a) and authorized by an LOA issued under § 216.106 of this subchapter and § 218.66, no person in connection with the activities listed in § 218.66 may do any of the following in connection with activities listed in § 218.60(c):
(1) Violate, or fail to comply with, the terms, conditions, or requirements of this subpart or an LOA issued under § 216.106 of this subchapter and § 218.66;
(2) Take any marine mammal not specified in § 218.62(b);
(3) Take any marine mammal specified in § 218.62(b) in any manner other than as specified in the LOA issued under § 216.106 of this subchapter and § 218.66;
(4) Take a marine mammal specified in § 218.62(b) after the National Marine Fisheries Service (NMFS) determines such taking results in more than a negligible impact on the species or stock of such marine mammal.
(b) [Reserved]
§ 218.64   Mitigation requirements.
(a) When conducting the activities identified in § 218.60(c), the mitigation measures contained in this subpart and any LOA issued under § 216.106 of this subchapter and § 218.66 must be implemented. These mitigation measures include, but are not limited to:
(1) Operational measures. Operational mitigation is mitigation that the USAF must implement whenever and wherever an applicable training or testing activity takes place within the EGTTR for each mission-day category.
(i) Pre-mission survey. (A) All missions must occur during daylight hours with the exception of gunnery training, mission-day category K, and other missions that can have nighttime monitoring capabilities comparable to the nighttime monitoring capabilities of gunnery aircraft.
(B) USAF range-clearing vessels and marine mammal survey vessels must be onsite 90 minutes before mission to clear prescribed human safety zone and survey the mitigation zone for the given mission-day category.
(C) For all live missions except gunnery missions, USAF Protected Species Observers (PSOs) must monitor the mitigation zones as defined in table 1 to paragraph (a)(1)(i)(C)( 5 ) of this section for the given mission-day category for a minimum of 30 minutes or until the entirety of the mitigation zone has been surveyed, whichever takes longer.
( 1 ) The mitigation zone for live munitions must be defined by the mission-day category that most closely corresponds to the actual planned mission based on the predicted net explosive weight at impact (NEWi) to be released, as shown in table 1 to paragraph (a)(1)(i)(C)( 5 ) of this section.
( 2 ) The mitigation zone for inert munitions must be defined by the energy class that most closely corresponds to the actual planned mission, as shown in table 2 to paragraph (a)(1)(i)(D) of this section.
( 3 ) The energy of the actual mission must be less than the energy of the identified mission-day category in terms of total NEWi as well as the largest single munition NEWi.
( 4 ) For any gunnery missions PSOs must at a minimum monitor out to the mitigation zone distances shown in table 3 to paragraph (a)(1)(i)(D) of this section that applies for the corresponding energy class.
( 5 ) Missions falling under mission-day categories A, B, C, and J, and all other missions when practicable must allot time to provide PSOs to vacate the human safety zone. While exiting, PSOs must observe the monitoring zone out to corresponding mission-day category as shown in table 1 to this paragraph (a)(1)(i)(C)( 5 ).
Table 1 to Paragraph (a)(1)(i)(C) ( 5 )—Pre-Mission Mitigation and Monitoring Zones (in m) for Live Missions Impact Area
1 For G, double the Level A harassment threshold distance (permanent threshold shift (PTS)) is 0.548 km, but G is AC-130 gunnery mission with an inherent mitigation zone of 9.260 km/5 nmi.
2 For H, double the Level A harassment threshold distance (PTS) is 0.450 km, but H is AC-130 gunnery mission with an inherent mitigation zone of 9.260 km/5 nmi.
3 For Q, double the Level A harassment threshold distance (PTS) is 0.494 km, but Q is AC-130 gunnery mission with an inherent mitigation zone of 9.260 km/5nmi.
4 R has components of both gunnery and inert small diameter bomb. Double the Level A harassment threshold distance (PTS) is 0.278 km, however, for gunnery component the inherent mitigation zone would be 9.260 km.
5 The monitoring zone for non-gunnery missions is the area between the mitigation zone and the human safety zone and is not standardized, as the human safety zone is not standardized. The human safety zone is determined per each mission by the Test Wing Safety Office based on the munition and parameters of its release (to include altitude, pitch, heading, and airspeed).
6 Based on the operational altitudes of gunnery firing, and the only monitoring during mission coming from onboard the aircraft conducting the firing, the monitoring zone for gunnery missions will be a smaller area than the mitigation zone and be based on the field of view from the aircraft. These observable areas will at least be double the Level A harassment threshold distance (PTS) for the mission-day categories G, H, and Q (gunnery-only mission-day categories).
(D) Missions involving air-to-surface gunnery operations must conduct aerial monitoring of the mitigation zones, as described in the table 3 to this paragraph (a)(1)(i)(D).
Table 2 to Paragraph (a)(1)(i)(D) —Pre-Mission Mitigation and Monitoring Zones (in m) for Inert Missions Impact Area
1 The monitoring zone for non-gunnery missions is the area between the mitigation zone and the human safety zone and is not standardized, as the human safety zone (HSZ) is not standardized. The HSZ is determined per each mission by the Test Wing Safety Office based on the munition and parameters of its release (to include altitude, pitch, heading, and airspeed).
Table 3 to Paragraph (a)(1)(i)(D) —Aerial Monitoring Requirements for Air-to-Surface Gunnery Operations
1 FU = Full Up; TR = Training Round.
(ii) Mission postponement, relocation, or cancellation. (A) If marine mammals other than the two authorized dolphin species for which take is authorized are observed in either the mitigation zone or monitoring zone by PSOs, then mission activities must be cancelled for the remainder of the day.
(B) The mission must be postponed, relocated, or cancelled if either of the two authorized dolphin species are visually detected in the mitigation zone during the pre-mission survey. Postponement must continue until the animals are confirmed to be outside of the mitigation zone and observed by a PSO to be heading away from the mitigation zone or until the animals are not seen again for 30 minutes.
(C) The mission must be postponed if marine mammal indicators ( i.e., large schools of fish or large flocks of birds) are observed feeding at the surface within the mitigation zone. Postponement must continue until these potential indicators are confirmed to be outside the mitigation zone.
(D) If either of the two authorized dolphin species are observed in the monitoring zone by PSOs when observation vessels are exiting the human safety zone, and if PSOs determine the marine mammals are heading toward the mitigation zone, then missions must either be postponed, relocated, or cancelled based on mission-specific test and environmental parameters. Postponement must continue until the animals are confirmed by a PSO to be heading away from the mitigation zone or until the animals are not seen again for 30 minutes.
(E) Aerial-based PSOs must look for potential indicators of marine mammal species presence, such as large schools of fish and large, active groups of birds.
(F) If marine mammal or potential indicators are detected in the mitigation area during pre-mission surveys or during the mission by aerial-based or video-based PSOs, operations must be immediately halted until the mitigation zone is clear of all marine mammals, or the mission must be relocated to another target area.
(iii) Vessel avoidance measures. Vessel operators must follow vessel strike avoidance measures.
(A) When any marine mammal is sighted, vessels must attempt to maintain a distance of at least 150 ft (46 m) away from marine mammals and 300 ft (92 m) away from whales. Vessels must reduce speed and avoid abrupt changes in direction until the animal(s) has left the area.
(B) If a whale is sighted in a vessel's path or within 300 feet (92 m) from the vessel, the vessel speed must be reduced and the vessel's engine must be shifted to neutral. The engines must not be engaged until the animals are clear of the area.
(C) If a whale is sighted farther than 300 feet (92 m) from the vessel, the vessel must maintain a distance of 300 feet greater between the whale and the vessel's speed must be reduced to 10 knots or less.
(D) Vessels are required to stay 500 m away from the Rice's whale. If a baleen whale cannot be positively identified to species level then it must be assumed to be a Rice's whale and the 500 m separation distance must be maintained.
(E) Vessels must avoid transit in the core distribution area (CDA), as specified in the LOA issued under § 216.106 of this subchapter and § 218.66, and within the 100—400 m isobath zone outside the CDA. If transit in these areas is unavoidable, vessels must not exceed 10 knots and transit at night is prohibited.
(F) An exception to any vessel strike avoidance measure is for instances required for human safety, such as when members of the public need to be intercepted to secure the human safety zone, or when the safety of a vessel operations crew could be compromised.
(iv) Gunnery-specific mitigation. (A) If 105-mm rounds are used during nighttime gunnery missions they must be 105 mm training rounds. The USAF may only use 105-mm high-explosive (HE) rounds during daytime operations.
(B) Within a mission, firing must start with use of the lowest caliber munition and proceed to increasingly larger rounds.
(C) Any pause in live fire activities greater than 10 minutes must be followed by the re-initiation of pre-mission surveys.
(2) Geographic mitigation measures —(i) Setbacks for Live Impact Areas (LIAs). Use of live munitions with surface or subsurface detonations is restricted in the western part of the existing LIA and East LIA such that activities may not occur seaward of the setbacks from the 100 m-isobath shown in table 4 to this paragraph (a)(2)(i).
Table 4 to Paragraph (a)(2)(i) —Setback Distances To Prevent Permanent Threshold Shift Impacts to the Rice's Whale
(ii) Gunnery missions. All gunnery missions must be conducted at least 500 meters landward of the 100-m isobath.
(iii) Live munition prohibitions. Use of live munitions with surface or subsurface detonations must be restricted to the LIA and East LIA and is prohibited from the area between the 100-m and 400-m isobaths.
(iv) Inert munition restrictions. Use of inert munitions is prohibited between the 100-m and 400-m isobaths throughout the EGTTR.
(v) Mission category K restrictions. (A) Munitions under mission-day category K must be fired into the EGTTR inside of the LIAs and outside of the area between 100-m to 400-m isobaths
(B) Mission-day category K munitions must have a setback of 1.338 km from the 100-m isobath.
(C) Mission-day category K munitions may be fired into portions of the EGTTR outside the LIAs but must be outside the area between the 100-m and 400-m isobaths.
(3) Environmental mitigation —(i) Sea state conditions. Missions must be postponed or rescheduled if conditions exceed Beaufort sea state 4, which is defined as moderate breeze, breaking crests, numerous white caps, wind speed of 11 to 16 knots, and wave height of 3.3 to 6 feet.
(ii) Daylight restrictions. All live missions except for nighttime gunnery and mission-day category K will occur no earlier than 2 hours after sunrise and no later than 2 hours before sunset.
(b) [Reserved]
§ 218.65   Requirements for monitoring and reporting.
(a) PSO training. All personnel who conduct protected species monitoring must complete Eglin Air Force Base's (AFB) Marine Species Observer Training Course.
(1) Any person who will serve as a PSO for a particular mission must have completed the training within a year prior to the mission.
(2) For missions that require multiple survey platforms to cover a large area, a Lead Biologist must be designated to lead the monitoring and coordinate sighting information with the Test Director or Safety Officer.
(b) Vessel-based monitoring. (1) Survey vessels must run predetermined line transects, or survey routes that will provide sufficient coverage of the survey area.
(2) Monitoring must be conducted from the highest point feasible on the vessels.
(3) There must be at least two PSOs on each survey vessel.
(4) For missions that require multiple vessels to cover a large survey area, a Lead Biologist must be designated.
(i) The Lead Biologist must coordinate all survey efforts.
(ii) The Lead Biologist must compile sightings information from other vessels.
(iii) The Lead Biologist must inform Tower Control if the mitigation and monitoring zones are clear or not clear of marine mammal species.
(iv) If the area is not clear, the Lead Biologist must provide recommendations on whether the mission should be postponed or canceled.
(v) Tower Control must relay the Lead Biologist's recommendation to the Safety Officer. The Safety Officer and Test Director must collaborate regarding range conditions based on the information provided.
(vi) The Safety Officer must have the final authority on decisions regarding postponements and cancellations of missions.
(c) Aerial-based monitoring. (1) All mission-day categories require aerial-based monitoring, assuming assets are available and when such monitoring does not interfere with testing and training parameters required by mission proponents.
(2) Gunnery mission aircraft must also serve as aerial-based monitoring platforms.
(3) Aerial survey teams must consist of Eglin Natural Resources Office personnel or their designees aboard a non-mission aircraft or the mission aircrew.
(4) All aircraft personnel on non-mission and mission aircraft who are acting in the role of a PSO must have completed Eglin AFB's Marine Species Observer Training Course.
(5) One trained PSO in the aircraft must record data and relay information on species sightings, including the species (if possible), location, direction of movement, and number of animals, to the Lead Biologist.
(6) For gunnery missions, after arriving at the mission site and before initiating gun firing, the aircraft must fly at least two complete orbits around the target area out to the applicable monitoring zone at a minimum safe airspeed and appropriate monitoring altitude as shown in table 3 to § 218.64(a)(1)(i)(D).
(7) Aerial monitoring by aircraft must maintain a minimum ceiling of 305 m (1,000 feet) and visibility of 5.6 km (3 nmi) for effective monitoring efforts and flight safety as shown in table 3 to § 218.64(a)(1)(i)(D).
(8) Pre-mission aerial surveys conducted by gunnery aircrews in AC-130s must extend out 5 nmi (9,260 m) from the target location while aerial surveys in CV-22 aircraft must extend out from the target location to a range of 3 nmi (5,556 m) as shown in table 3 to § 218.64(a)(1)(i)(D).
(9) If the mission is relocated, the pre-mission survey procedures must be repeated in the new area.
(10) If multiple gunnery missions are conducted during the same flight, marine species monitoring must be conducted separately for each mission.
(11) During nighttime missions, night-vision goggles must be used.
(12) During nighttime missions, low-light electro-optical and infrared sensor systems on board the aircraft must be used for marine mammal species monitoring.
(13) Mission-day category K tests and any other missions that are conducted at nighttime must be supported by AC-130 aircraft with night-vision instrumentation or other platforms with comparable nighttime monitoring capabilities.
(14) For Mission-day category K missions, the pre-mission survey area must extend out to, at a minimum, double the Level A harassment (PTS) threshold distance for delphinids (0.89 km). Mission-day category K is estimated to have a PTS threshold distance of 0.445 km as shown in table 1 to this paragraph (c)(14).
Table 1 to Paragraph (c)(14) —Bottlenose Dolphin Threshold Distances (in km) for Live Missions in the Existing Live Impact Area
(d) Video-based monitoring. (1) All mission-day categories require video-based monitoring when practicable except for gunnery missions.
(2) A trained PSO (the video camera PSO) must monitor the live video feeds from the Gulf Range Armament Test Vessel (GRATV) transmitted to the Central Control Facility (CCF).
(3) The video camera PSO must report any marine mammal species sightings to the Safety Officer, who will also be at the CCF.
(4) The video camera PSO must have open lines of communication with the PSOs on vessels to facilitate real-time reporting of marine species sightings.
(5) Direct radio communication must be maintained between vessels, GRATV personnel, and Tower Control throughout the mission.
(6) If a marine mammal species is detected on the live video by a PSO prior to weapon release, the mission must be stopped immediately by the Safety Officer.
(7) Supplemental video monitoring by additional aerial assets must be used when practicable ( e.g. balloons, unmanned aerial vehicles).
(e) Post-mission monitoring. (1) All marine mammal sightings must be documented on report forms that are submitted to the Eglin Natural Resources Office after the mission.
(2) For gunnery missions, following each mission, aircrews must conduct a post-mission survey beginning at the operational altitude and continuing through an orbiting descent to the designated monitoring altitude. The post-mission survey area will be the area covered in 30 minutes of observation in a direction down-current from the impact site or the actual pre-mission survey area, whichever is reached first.
(3) During post-mission monitoring, PSOs must survey the mission site for any dead or injured marine mammals. The post-mission survey area will be the area covered in 30 minutes of observation in a direction down-current from the impact site or the actual pre-mission survey area, whichever is reached first.
(f) Acoustic monitoring. (1) The USAF must conduct a single passive acoustic monitoring (PAM) study to investigate marine mammal vocalizations before, during, and after live missions that include underwater detonations in the EGTTR.
(2) The USAF must further investigate ways to supplement its mitigation measures with the use of real-time PAM devices ( i.e., sonobuoys or hydrophones).
(3) These studies are contingent upon the availability of funding.
(4) Both studies must be approved by NMFS.
(g) Annual monitoring report. The USAF must submit an annual draft monitoring report to NMFS within 90 working days of the completion of each year's activities authorized by the LOA as well as a comprehensive summary report at the end of the project. The annual reports and final comprehensive report must be prepared and submitted within 30 days following resolution of any NMFS comments on the draft report. If no comments are received from NMFS within 30 days of receipt of the draft report, the report will be considered final. If comments are received, a final report addressing NMFS comments must be submitted within 30 days after receipt of comments. The annual reports must contain the informational elements described in paragraphs (g)(1) through (5) of this section, at a minimum. The comprehensive 7-year report must include a summary of the monitoring information collected over the 7-year period (including summary tables), along with a discussion of the practicability and effectiveness of the mitigation and monitoring and any other important observations or discoveries.
(1) Dates and times (begin and end) of each EGTTR mission;
(2) Complete description of mission activities;
(3) Complete description of pre-and post-monitoring activities occurring during each mission;
(4) Environmental conditions during monitoring periods including Beaufort sea state and any other relevant weather conditions such as cloud cover, fog, sun glare, and overall visibility to the horizon, and estimated observable distance; and
(5) Upon observation of a marine mammal, the following information should be collected:
(i) Observer who sighted the animal and observer location and activity at time of sighting;
(ii) Time of sighting;
(iii) Identification of the animal ( e.g., genus/species, lowest possible taxonomic level, or unidentified), observer confidence in identification, and the composition of the group if there is a mix of species;
(iv) Distances and bearings of each marine mammal observed in relation to the target site;
(v) Estimated number of animals including the minimum number, maximum number, and best estimate);
(vi) Estimated number of animals by cohort ( e.g., adults, juveniles, neonates, group composition etc.);
(vii) Estimated time that the animal(s) spent within each of the mitigation and monitoring zones;
(viii) Description of any marine mammal observed marine mammal behaviors (such as feeding or traveling) or changes in behavioral patterns ( e.g., changes in travel direction or speed, breaking off feeding, breaching), noting when they relate to know changes in activities;
(ix) Detailed information about implementation of any mitigation ( e.g., postponements, relocations and cancellations); and
(x) All PSO datasheets and/or raw sightings data.
(6) The final comprehensive report must include a summary of data collected as part of the annual reports.
(h) Reporting dead or injured marine mammal. (1) In the event that personnel involved in the monitoring activities discover an injured or dead marine mammal, the USAF must report the incident to NMFS Office of Protected Resources (OPR), and to the NMFS Southeast Region Marine Mammal Stranding Network Coordinator, as soon as feasible. If the death or injury was likely caused by the USAF's activity, the USAF must immediately cease the specified activities until NMFS OPR 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 this subpart and the LOA issued under § 216.106 of this subchapter and § 218.66.
(2) The USAF will not resume their activities until notified by NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
(ii) Species identification (if known) or description of the animal(s) involved;
(iii) Condition of the animal(s) (including carcass condition if the animal is dead);
(iv) Observed behaviors of the animal(s), if alive;
(v) If available, photographs or video footage of the animal(s); and
(vi) General circumstances under which the animal was discovered.
§ 218.66   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations in this subpart, the USAF must apply for and obtain an LOA in accordance with § 216.106 of this subchapter.
(b) An LOA, unless suspended or revoked, may be effective seven years from the date of issuance.
(c) Except for changes made pursuant to the adaptive management provision of § 218.67(b)(1), in the event of projected changes to the activity or to mitigation, monitoring, or reporting required by an LOA issued under this subpart, the USAF must apply for and obtain a modification of the LOA as described in § 218.67.
(d) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species or stocks of marine mammals and their habitat; and
(4) Requirements for monitoring and reporting.
(e) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the findings made for the total taking allowable under the regulations in this subpart.
(f) Notice of issuance or denial of the LOA(s) will be published in the Federal Register within 30 days of a determination.
§ 218.67   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under § 216.106 of this subchapter and § 218.66 for the activity identified in § 218.60(c) may be modified upon request by the applicant, consistent with paragraph (b) of this section, provided that any requested changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (b)(1) of this section) do not change the underlying findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years).
(b) An LOA issued under § 216.106 of this subchapter and § 218.66 may be modified by NMFS under the following circumstances:
(1) Adaptive management. After consulting with the USAF regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from USAF's annual monitoring report and annual exercise report from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies;
(C) Results from specific stranding investigations; or
(D) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of a new 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 of marine mammals specified in LOAs issued pursuant to § 216.106 of this subchapter and § 218.66, an LOA may be modified without prior public notice or opportunity for public comment. Notice will be published in the Federal Register within thirty days of the action.
§§ 218.68-218.69   [Reserved]
§ 218.70   Specified activity and geographical 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 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 Hawaii-Southern California Training and Testing (HSTT) Study Area, which includes established operating and warning areas across the north-central Pacific Ocean, from the mean high tide line in Southern California west to Hawaii and the International Date Line. The HSTT Study Area includes the at-sea areas of three existing range complexes, 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 HSTT Study Area are Navy pierside locations in Hawaii 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 occurs incidental to the Navy conducting training and testing activities:
(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;
(iii) Office of Naval Research Testing Activities; and
(iv) Naval Information Warfare Systems Command.
§ 218.71   Effective dates.
This subpart is effective from January 16, 2025, through December 20, 2025.
§ 218.72   Permissible methods of taking.
(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 intentionally, 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 activity is in compliance with all terms, conditions, and requirements of these regulations in this subpart and the applicable 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 Paragraph ( b )
Note to Table 1: CA/OR/WA = California/Oregon/Washington.
§ 218.73   Prohibitions.
Except for incidental takings contemplated in § 218.72(a) and authorized by LOAs issued under §§ 216.106 of this chapter and 218.76, it is unlawful for any person to do any of the following in connection with the activities listed in § 218.70(c):
(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 218.76;
(b) Take any marine mammal not specified in § 218.72(b);
(c) Take any marine mammal specified 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) after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.
§ 218.74   Mitigation requirements.
When conducting the activities identified 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 wherever an applicable training or testing activity takes place within the HSTT Study Area for each applicable activity category or stressor category and includes 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 education. Navy personnel (including civilian personnel) involved in mitigation and training or testing activity reporting under the specified activities will complete one or more modules identified in their career path training plan, as specified in the LOAs.
(2) Active sonar. Active sonar includes low-frequency active sonar, mid-frequency active sonar, and high-frequency active sonar. For vessel-based activities, mitigation applies only to sources that are positively controlled and deployed from manned surface vessels ( e.g., sonar sources towed from manned surface platforms). For aircraft-based activities, mitigation applies only to sources that are positively controlled and deployed from manned aircraft that do not operate at high altitudes ( e.g., rotary-wing aircraft). Mitigation does not apply to active sonar sources deployed from unmanned aircraft or aircraft operating at high altitudes ( e.g., maritime patrol aircraft). For active sonar subject mitigation requirements:
(i) Number of Lookouts and observation platform —(A) Hull-mounted sources. One Lookout is required for hull-mounted sources for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and for platforms using active sonar while moored or at anchor (including pierside). Two Lookouts are required for hull mounted-sources for platforms without space or manning restrictions while underway (at the forward part of the ship).
(B) Sources that are not hull-mounted sources. One Lookout is required on the ship or aircraft conducting the activity for sources that are not hull-mounted.
(ii) Mitigation zone and requirements. During active sonar use, the following requirements apply:
(A) Powerdown for marine mammals at 1,000 yards. At 1,000 yards (yd) (914.4 m) from a marine mammal, Navy personnel must power down by 6 decibels (dB).
(B) Powerdown for marine mammals at 500 yards. At 500 yd (457.2 m) from a marine mammal, Navy personnel must power down by an additional 4 dB (for a total of 10 dB).
(C) Shutdowns for marine mammals at 200 yards. At 200 yd (182.9 m) from a marine mammal, Navy personnel must shut down low-frequency active sonar ≥200 dB and hull-mounted mid-frequency active sonar; or Navy personnel must shut down low-frequency active sonar <200 dB, mid-frequency active sonar sources that are not hull-mounted, and high-frequency active sonar.
(D) Prior to activity. Prior to the start of the active sonar activity ( e.g., when maneuvering on station), Navy personnel must observe the 1,000 yd (914.4 m) mitigation zone for floating vegetation; if floating vegetation is observed in the mitigation zone, Navy personnel must relocate or delay the start of active sonar transmission until the mitigation zone is clear. Navy personnel must also observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of active sonar transmission.
(E) During the activity for low-frequency active sonar at or above 200 dB and hull-mounted mid-frequency active sonar. When using low-frequency active sonar at or above 200 dB and hull-mounted mid-frequency active sonar, Navy personnel must observe the 1,000 yd (914.4 m) mitigation zone for marine mammals and power down active sonar transmission by 6 dB if marine mammals are observed within 1,000 yd (914.4 m) of the sonar source; power down by an additional 4 dB (for a total of 10 dB total) if marine mammals are observed within 500 yd (457.2 m) of the sonar source; and cease transmission if marine mammals are observed within 200 yd (182.9 m) of the sonar source.
(F) During the activity for low-frequency active sonar below 200 dB, mid-frequency active sonar sources that are not hull mounted, and high-frequency active 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 active sonar, Navy personnel must observe the 1,000 yd (914.4 m) mitigation zone for marine mammals and cease active sonar transmission if marine mammals are observed within 200 yd (182.9 m) of the sonar source.
(G) Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone indicated in § 218.74(a)(2)(ii) prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 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 activities, 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 where a dolphin(s) is observed in the mitigation zone, the Lookout concludes that the dolphin(s) are deliberately 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 marine mammal sightings within the mitigation zone).
(3) Air guns. For activities using air guns:
(i) Number of Lookouts and observation platform. One Lookout must be positioned on a ship or pierside.
(ii) Mitigation zone and requirements. The mitigation zone is 150 yd (137.2 m) around the air gun.
(A) Prior to activity. Prior to the initial start of the activity ( e.g., when maneuvering on station), Navy personnel 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 personnel must also observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of air gun use.
(B) During activity. During the activity, Navy personnel 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 mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing air gun use) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 min; or
( 4 ) Air gun transit. 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 sighting.
(4) Pile driving. For pile driving and pile extraction sound during Elevated Causeway System training:
(i) Number of Lookouts and observation platform. One Lookout must be positioned on the shore, the elevated causeway, or a small boat.
(ii) Mitigation zone and requirements. The mitigation zone is 100 yd (91.4 m) around the pile driver.
(A) Prior to activity. Prior to the initial start of the activity (for 30 min), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation 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 observed, Navy personnel must delay the start of pile driving or vibratory pile extraction.
(B) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease impact pile driving or vibratory 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 mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing pile driving or pile extraction) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is observed exiting the mitigation zone;
( 2 ) Thought to have exited. The animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the pile driving location; or
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 minutes.
(5) Weapons firing noise. For weapons firing noise associated with large-caliber gunnery activities:
(i) Number of Lookouts and observation platform. One Lookout must be positioned on the ship conducting the firing. 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-caliber non-explosive practice munitions” in paragraphs (a)(8)(i) and (a)(18)(i) of this section.
(ii) Mitigation zone and requirements. The mitigation zone is 30 degrees on either side of the firing line out to 70 yd (64 m) from the muzzle of the weapon being fired.
(A) Prior to activity. Prior to the start of the activity, Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of weapons firing until the mitigation zone is clear. Navy personnel must also observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of weapons firing.
(B) During activity. During the activity, Navy personnel 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 mitigation zone prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 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 activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(6) Explosive sonobuoys. For explosive sonobuoys:
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft or on a small boat. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 600 yd (548.6 m) around an explosive sonobuoy.
(A) Prior to activity. 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 observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of sonobuoy or source/receiver pair detonations until the mitigation zone is clear. Navy personnel must conduct passive acoustic monitoring for marine mammals and use information from detections to assist visual observations. Navy personnel 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 activity. During the activity, 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.
(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 mitigation zone prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. The animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative 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 that have fuel constraints ( e.g., helicopter), or 30 min when the activity involves aircraft that are not typically fuel constrained.
(D) After activity. 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 commitments), Navy personnel must observe for marine 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 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.
(7) Explosive torpedoes. For explosive torpedoes:
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel positioned in those assets (e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2,100 yd (1,920.2 m) around the intended impact location.
(A) Prior to activity. Prior to the initial start of the activity ( e.g., during deployment of the target), Navy personnel must observe the mitigation zone for floating vegetation and jellyfish aggregations; if floating vegetation or jellyfish aggregations are observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear. Navy personnel must conduct passive acoustic monitoring for marine mammals and use the information from detections to assist visual observations. Navy personnel also must visually observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing.
(B) During activity. During the activity, Navy personnel must observe for marine mammals and jellyfish aggregations; if marine 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 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 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 commitments), observe for marine 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 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. For gunnery activities using explosive medium-caliber and large-caliber projectiles, the following mitigation applies to activities using a surface target:
(i) Number of Lookouts and observation platform. One Lookout must be on the vessel or aircraft conducting the activity. 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 participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements —(A) Air-to-surface activities. The mitigation zone is 200 yd (182.9 m) around the intended impact location for air-to-surface activities using explosive medium-caliber projectiles.
(B) Surface-to-surface activities, medium-caliber. The mitigation zone is 600 yd (548.6 m) around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles.
(C) Surface-to-surface activities, large-caliber. The mitigation zone is 1,000 yd (914.4 m) around the intended impact location for surface-to-surface activities using explosive large-caliber projectiles.
(D) Prior to activity. Prior to the start of the activity ( e.g., when maneuvering on station), Navy personnel must observe the mitigation 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 observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing.
(E) During activity. During the activity, Navy personnel must observe 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 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 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 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 commitments), observe for marine 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 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. For aircraft-deployed explosive missiles and rockets. Mitigation applies to activities using a surface target:
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements —(A) Missiles or rockets with 0.6-20 lb net explosive weight. The mitigation zone is 900 yd (823 m) around the intended impact location for missiles or rockets with 0.6-20 lb net explosive weight.
(B) Missiles with 21-500 lb net explosive weight. The mitigation zone is 2,000 yd (1,828.8 m) around the intended impact location for missiles with 21-500 lb net explosive weight.
(C) Prior to activity. 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 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 observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing.
(D) During activity. During the activity, Navy personnel must observe 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 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 commitments), observe for marine 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 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. For explosive bombs:
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft conducting the activity. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2,500 yd (2,286 m) around the intended target.
(A) Prior to activity. Prior to the initial start of the activity ( e.g., when arriving on station), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of bomb deployment 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 bomb deployment.
(B) During activity. During the activity ( 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.
(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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or for activities 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 sighting.
(D) 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 commitments), observe for marine 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 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. For 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 personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 2.5 nautical miles (4.6 km) around the target ship hulk.
(A) Prior to activity. Prior to the initial start of the activity (90 min prior to the first firing), Navy personnel must conduct aerial observations of the mitigation zone for floating vegetation and jellyfish aggregations; 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 conduct aerial observations of the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must delay the start of firing.
(B) During activity. During the activity, Navy personnel must conduct passive acoustic monitoring for marine mammals and use the information from detections to assist visual observations. Navy personnel must visually observe the mitigation zone for marine mammals from the vessel; if marine mammals are observed, Navy personnel must cease firing. Immediately after any planned or unplanned breaks in weapons firing of longer than 2 hours, Navy personnel must observe the mitigation zone for marine mammals from the aircraft and vessel; if marine mammals are observed, Navy personnel must delay recommencement 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 minutes.
(D) After activity. After completion of the activity (for 2 hours after sinking the vessel or until sunset, whichever comes first), Navy personnel must observe for marine 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 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.
(12) Explosive mine countermeasure and neutralization activities. For explosive mine countermeasure and neutralization activities:
(i) Number of Lookouts and observation platform —(A) Smaller mitigation zone. One Lookout must be positioned on a vessel or in an aircraft when implementing the smaller mitigation zone.
(B) Larger mitigation zone. Two Lookouts (one must be positioned in an aircraft and one must be on a small boat) when implementing the larger mitigation zone.
(C) Additional platforms. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements —(A) Activities using 0.1-5 lb net explosive weight. The mitigation zone is 600 yd (548.6 m) around the detonation site for activities using 0.1-5 lb net explosive weight.
(B) Activities using 6-650 lb net explosive weight. The mitigation zone is 2,100 yd (1,920.2 m) around the detonation site for activities using 6-650 lb net explosive weight (including high explosive target mines).
(C) Prior to activity. Prior to the initial 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 constrained), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of detonations 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 activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals, concentrations of seabirds, and individual foraging seabirds; if marine mammals, concentrations of seabirds, or individual foraging seabirds are observed, Navy personnel must cease detonations.
(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 recommencing detonations) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 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 activity involves aircraft that are not typically fuel constrained), Navy personnel must observe for marine 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 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 activities involving Navy divers. For explosive mine neutralization activities involving Navy divers:
(i) Number of Lookouts and observation platform —(A) Smaller mitigation zone. 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 implementing the smaller mitigation zone.
(B) Larger mitigation zone. 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 implementing the larger mitigation zone.
(C) Divers. 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) Additional platforms. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements —(A) Activities under positive control using 0.1-20 lb net explosive weight. The mitigation zone is 500 yd (457.2 m) around the detonation site during activities under positive control using 0.1-20 lb net explosive weight.
(B) Activities under positive control using 21-60 lb net explosive weight charges. The mitigation zone is 1,000 yd (914.4 m) 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 explosive weight charges.
(C) Prior to activity. 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 personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of detonations or fuse initiation 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 or fuse initiation.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals, concentrations of seabirds, and individual foraging seabirds (in the water and not on shore); if marine mammals, concentrations of seabirds, or individual foraging seabirds are observed, Navy personnel must cease detonations or fuse initiation. To the maximum extent practicable depending on mission requirements, safety, and environmental conditions, Navy personnel must position boats near the mid-point of the mitigation zone radius (but outside of the detonation 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 detonation location with one Lookout observing inward toward the detonation site and the other observing outward toward the perimeter of the mitigation zone. If used, Navy aircraft must travel in a circular pattern around the detonation location to the maximum extent practicable. Navy personnel must not set time-delay firing devices (0.1-29 lb net explosive weight) to exceed 10 minutes.
(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 recommencing detonations) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 3 ) Clear from additional sightings. 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 activity. After completion of an activity (for 30 min), the Navy must observe for marine mammals for 30 minutes. Navy personnel must observe for marine 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 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.
(14) Maritime security operations—anti-swimmer grenades —(i) Number of Lookouts and observation platform. One Lookout must be positioned on the small boat conducting the activity. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. 200 yd (182.9 m) around the intended detonation location.
(A) Prior to activity. Prior to the initial start of the activity ( e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vegetation; if floating vegetation is observed, Navy personnel must relocate or delay the start of detonations 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.
(B) During activity. During the activity, Navy personnel 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 mitigation zone prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 min; or
( 4 ) Detonation location transit. The intended detonation location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.
(D) 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 commitments), observe for marine 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 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 exercises. For underwater demolition multiple charge—mat weave and obstacle loading exercises:
(i) Number of Lookouts and observation 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 activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone while performing their regular duties.
(ii) Mitigation zone and requirements. The mitigation zone is 700 yd (640.1 m) around the intended detonation location.
(A) Prior to activity. 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 mitigation zone for floating vegetation and marine mammals; if floating vegetation 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 mammals; if marine mammals are observed, Navy personnel must delay the start of detonations.
(B) During activity. During the activity, Navy personnel 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 mitigation zone prior to the initial start of the activity (by delaying 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. The animal is thought to have exited the mitigation zone based on a determination of its course, speed, and movement relative to the detonation location; or
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min (as determined by the Navy shore observer).
(D) After activity. 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 detonations occurred; if any injured or dead marine mammals are observed, Navy personnel must follow established incident 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 detonations occurred.
(16) Vessel movement. The following requirements apply to vessel movement, except mitigation will not be applied if: the vessel's safety is threatened; the vessel is restricted in its ability to maneuver ( e.g., during launching and recovery of aircraft or landing craft, during towing activities, when mooring); the vessel is operated autonomously; or when impracticable based on mission requirements ( e.g., during Amphibious Assault—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) Whales. The mitigation zone is 500 yd (457.2 m) around whales.
(B) Marine mammals other than whales. The mitigation zone is 200 yd (182.9 m) around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels).
(iii) During the activity. When underway, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver (which may include reducing speed as the mission or circumstances allow) to maintain distance.
(iv) Incident reporting procedures. If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures.
(v) Post-strike alerts. Navy personnel must send alerts to Navy vessels of increased risk of strike following any reported Navy vessel strike in the HSTT Study Area.
(vi) Large whale aggregation alerts. Navy personnel must issue real-time notifications to Navy vessels of large whale aggregations (four or more whales) within 1 nmi (1.9 km) of a Navy vessel in the area between 32-33 degrees North and 117.2-119.5 degrees West.
(17) Towed in-water devices. The following mitigation applies to devices that are towed from a manned surface platform or manned aircraft, except the mitigation will not be applied if the safety of the towing platform or in-water device is threatened:
(i) Number of Lookouts and observation platform. One Lookout must be positioned on a manned towing platform.
(ii) Mitigation zone and requirements. The mitigation zone is 250 yd (228.6 m) 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 mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance.
(18) Small-, medium-, and large-caliber non-explosive practice munitions. For small-, medium-, and large-caliber non-explosive practice munitions, the following mitigation applies to activities using a surface target:
(i) Number of Lookouts and observation platform. One Lookout must be positioned 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. The mitigation zone is 200 yd (182.9 m) around the intended impact location.
(A) Prior to activity. Prior to the start of the activity ( e.g., when maneuvering on station), Navy personnel must observe the mitigation 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 observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing.
(B) During activity. During the activity, Navy personnel 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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;
( 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 vessel-based firing; or
( 4 ) Impact location transit. 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. For aircraft-deployed non-explosive missiles and rockets, the following mitigation applies to activities using a surface target.
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft.
(ii) Mitigation zone and requirements. The mitigation zone is 900 yd (823 m) around the intended impact location.
(A) Prior to activity. 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 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 observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must relocate or delay the start of firing.
(B) During activity. During the activity, Navy personnel 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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
( 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.
(20) Non-explosive bombs and mine shapes. For non-explosive bombs and non-explosive mine shapes during mine laying activities:
(i) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft.
(ii) Mitigation z one and requirements. The mitigation zone is 1,000 yd (914.4 m) around the intended target.
(A) Prior to activity. Prior to the initial start of the activity ( e.g., when arriving on station), Navy personnel must observe the mitigation zone for floating vegetation; 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 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 laying.
(B) During activity. 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 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 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 observed exiting the mitigation zone;
( 2 ) Thought to have exited. 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 or minefield location;
( 3 ) Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or
( 4 ) Target transit. For activities 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 sighting.
(b) Mitigation areas. In addition to procedural mitigation, Navy personnel must implement mitigation measures within mitigation areas to avoid or reduce potential impacts on marine mammals.
(1) Mitigation areas for marine mammals in the Hawaii Range Complex for sonar, explosives, and vessel strikes —(i) Mitigation area requirements —(A) Hawaii Island Mitigation Area (year-round) —( 1 ) MF1 surface ship hull-mounted mid-frequency active sonar, MF4 dipping sonar, or explosives. Except as provided in paragraph (b)(1)(i)(A)( 2 ) of this section, within the Hawaii Island Mitigation Area, Navy personnel must not conduct more than 300 hours of MF1 surface ship hull-mounted 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 ) National security exception. Should national security require conduct of more than 300 hours of MF1 surface ship hull-mounted mid-frequency 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 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.
(B) 4-Islands Region Mitigation Area (November 15-April 15 for active sonar; year-round for explosives) —( 1 ) MF1 surface ship hull-mounted mid-frequency active sonar or explosives. Except as provided in paragraph (b)(1)(i)(B)( 2 ) of this section, within the 4-Islands Region Mitigation Area, Navy personnel must not use MF1 surface ship hull-mounted mid-frequency active sonar from November 15-April 15 or explosives that could potentially result in takes of marine mammals at any time during training and testing.
( 2 ) National security exception. Should national security require use of MF1 surface ship hull-mounted mid-frequency active sonar or explosives 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 personnel must report the total hours of surface ship hull-mounted mid-frequency active sonar used in the Humpback Whale Special Reporting Areas established from December 15-April 15 in its annual training and testing activity reports submitted to NMFS.
(D) Humpback Whale Awareness Notification Message Area (November-April). The following requirements apply in the Humpback Whale Awareness Notification Message Area established from November-April.
( 1 ) Seasonal awareness notification message. Navy personnel must issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, including humpback whales.
( 2 ) Vessel instruction. To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct vessels to remain vigilant to the presence of large whale species (including humpback whales).
( 3 ) Awareness notification message use. Platforms must use the information from the awareness notification message to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(ii) [Reserved]
(2) Mitigation areas for marine mammals in the southern California portion of the study area for sonar, explosives, and vessel strikes —(i) Mitigation area requirements —(A) San Diego Arc, San Nicolas Island, and Santa Monica/Long Beach Mitigation Areas (June 1-October 31) —( 1 ) MF1 surface ship hull-mounted mid-frequency active sonar. Except as provided in paragraph (b)(2)(i)(A)( 2 ) of this section, within the San Diego Arc, San Nicolas Island, and Santa Monica/Long Beach Mitigation Areas from June 1-October 31, Navy personnel 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 ) National security exception. Should national security require conduct of more than 200 hours of MF1 surface ship hull-mounted mid-frequency active sonar in the combined areas during training and testing (excluding normal maintenance and systems checks), 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) in its annual activity reports submitted to NMFS.
( 3 ) Explosives in San Diego Arc Mitigation Area. 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 ) National security exception. 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 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 submitted to NMFS.
( 5 ) Explosives in San Nicolas Island Mitigation Area. 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 explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training.
( 6 ) National security exception. Should national security require use of explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training in the San Nicolas Island 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 submitted to NMFS.
( 7 ) Explosives in the Santa Monica/Long Beach Mitigation Area. 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 explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training and testing.
( 8 ) National security exception. Should national security require use of explosives that could potentially result in the take of marine mammals during mine warfare, large-caliber gunnery, 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 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 submitted to NMFS.
(B) Santa Barbara Island Mitigation Area (year-round) —( 1 ) MF1 surface ship hull-mounted mid-frequency active sonar or explosives. Except as provided in paragraph (b)(2)(i)(B)( 2 ) of this section, within the Santa Barbara Island Mitigation Area, Navy personnel must not use 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-caliber or large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training.
( 2 ) National security exception. 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-caliber or large-caliber gunnery, torpedo, bombing, and missile (including 2.75-inch rockets) activities during training, 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) Spring Large Whale Awareness Notification Message —( 1 ) Awareness notification message. Navy personnel must issue an awareness notification message during the spring to alert ships and aircraft within the eastern Pacific to the possible presence of concentrations of large whales, including blue whales, fin whales, and humpback whales.
( 2 ) Applicable period. This message must apply to a period that is based on predicted oceanographic conditions for a given year.
( 3 ) Marine mammals and vessel transit. To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct personnel on vessels that when a marine mammal is spotted, this may be an indicator that additional marine mammals are present nearby, and increased vigilance and awareness of Navy personnel is warranted.
( 4 ) Platform use of message. Platforms must use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(D) Gray Whale (November-March) and Fin Whale (November-May) Awareness Notification Message Areas. The following requirements apply in the Gray Whale Awareness Notification Areas from November-March and Fin Whale Awareness Notification Message Areas from November-May.
( 1 ) Seasonal awareness message. Navy personnel must issue a seasonal awareness notification message to alert ships and aircraft operating in the area to the possible presence of concentrations of large whales, including gray whales, and fin whales.
( 2 ) Marine mammals and vessel transit. To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel must instruct personnel on vessels to remain vigilant to the presence of large whale species.
( 3 ) Platform use of message. Platforms must use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural 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 considerations allow) if the specified activity identified in § 218.70 is thought to have resulted in the mortality or serious injury of any marine mammals, or in any Level A harassment or Level B harassment of marine mammals not identified in § 218.72(b).
(b) Monitoring and reporting under the LOAs. The Navy must conduct all monitoring and reporting required under the LOAs. Details on program goals, objectives, project selection process, and current projects are available at www.navymarinespeciesmonitoring.us.
(c) Notification of injured, live stranded, or dead marine mammals. The Navy must comply with all notification and reporting requirements under the LOAs. The Notification and Reporting Plan, which sets out notification, reporting, and other requirements when dead, injured, or live stranded marine mammals are detected. The Notification and Reporting Plan is available at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
(d) Changes in Lookout policies. The Navy must report changes in its Lookout policies to NMFS as soon as practicable after a change is made.
(e) Annual HSTT Study Area marine species monitoring report. The Navy must submit an annual report of the HSTT Study Area monitoring describing the implementation and results from the previous calendar year. Data collection methods must be standardized across range complexes and study areas to allow for comparison in different geographic locations. The report must be submitted to the Director, Office of Protected Resources, NMFS, either within 3 months after the end of the calendar year, or within 3 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 intermediate scientific objectives within the HSTT Study Area associated with the Integrated Comprehensive Monitoring Program (ICMP). Similar study questions must be treated together so that progress on each topic can be summarized across all Navy ranges. The report need not include analyses and content that does not provide direct assessment of cumulative progress on the monitoring plan study questions. As an alternative, the Navy may submit a multi-Range Complex annual Monitoring Plan report to fulfill this requirement. Such a report will describe progress of knowledge made with respect to monitoring study questions across multiple Navy ranges associated with the ICMP. Similar study questions must be treated together so that progress on each topic can be summarized across multiple Navy ranges. The report need not include analyses and content that does not provide direct assessment 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.
(f) Annual HSTT Study Area training exercise report and testing activity report. Each year, the Navy must submit two preliminary reports (Quick Look Report) 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 Protected Resources, NMFS, within 3 months after the 1-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 reports 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), Sinking Exercise (SINKEX) events, and a summary of all sound sources used, including within specific mitigation reporting areas, as described in paragraphs (f)(3) through (5) of this section. The analysis in the detailed reports must be based on the accumulation of data from the current year's report and data collected from previous reports. The detailed reports must contain information identified in paragraphs (f)(1) through (9) of this section.
(1) MTEs. This section of the report must contain the following information 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, aircraft, and other platforms participating in each 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 average) during exercise.
(ii) Individual marine mammal sighting information for each sighting in each exercise where mitigation was implemented:
(A) Date, time, and location of sighting.
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial Detection Sensor ( e.g., sonar, Lookout).
(E) Indication of specific type of platform observation was made from (including, for example, what type of surface vessel or testing platform).
(F) Length of time observers maintained 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 (182.9 m), 200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m), 1,000 to 2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd (1,828.8 m) from sonar source.
(K) Whether operation of sonar sensor was delayed, or sonar was powered or shut down, and the length of the delay.
(L) If source in use was hull-mounted, true bearing of animal from the vessel, true direction of vessel's travel, and estimation of animal's motion relative to vessel (opening, closing, parallel).
(M) Lookouts must report, in plain language 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. ) 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 exposed. This evaluation must identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(2) 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 exercise.
(D) Total number and types of explosive 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, aircraft, and other platforms participating 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 illustrating how marine mammal detection was conducted.
(ii) Individual marine mammal observation (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 maintained visual contact with marine mammal.
(F) Sea state.
(G) Visibility.
(H) Whether sighting was before, during, 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 (182.9 m), 200 to 500 yd (182.9 to 457.2 m), 500 to 1,000 yd (457.2 m to 914.4 m), 1,000 to 2,000 yd (914.4 m to 1,828.8 m), or greater than 2,000 yd (1,828.8 m).
(J) Lookouts must report, in plain language 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 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 explosives were detonating in the water, indicate munition type in use at time of marine mammal detection.
(3) Summary of sources used. This section of the report must include the following 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 driving 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 operation of surface ship hull-mounted mid-frequency active sonar used in the Humpback Whale Special Reporting Area.
(5) Mitigation areas. The Navy must report any use of restricted acoustic and explosive sources identified in § 218.74(b). Information included in the classified annual reports may be used to inform future adaptive management of activities within the HSTT Study Area.
(6) Geographic information presentation. The reports must present an annual (and seasonal, where practical) depiction 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 15 calendar days after the completion of any MTE indicating:
(i) Location of the exercise;
(ii) Beginning and end dates of the exercise; and
(iii) Type of exercise.
(8) Large whale aggregations. For each instance that an aggregation of large whales (4 or more whales within 1 nmi (1.9 km)) is reported in the area between 32-33 degrees North and 117.2-119.5 degrees West, Navy personnel must report the following information and to the extent practicable, this information should be provided in the Navy's unclassified version of these reports:
(i) Date, time, and general location ( e.g., approximately 10-12 nmi (18.5 to 22.2 km) Southeast of San Clemente Island) of the whales when the aggregation was first sighted
(ii) Total number of whales observed within 1 nmi (1.9 km) of a Navy vessel that make up the aggregation
(iii) Approximate distance (or distances if more than 1 group of whales is sighted) of the vessel from the whales in the aggregation when the whales were first sighted.
(9) Foreign military sonar and explosives. Navy personnel must confirm that foreign military use of sonar and explosives, when such militaries are participating in a U.S. Navy-led exercise or event, combined with the U.S. Navy's use of sonar and explosives, would not cause exceedance of the analyzed levels within each NAEMO modeled sonar and explosive bin used for estimating predicted impacts.
(g) 7-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 7-year total for each sound source bin with a comparison to the 7-year allowance. Additionally, if there were any changes to the sound source allowance, this report must include 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 2018 HSTT FEIS/OEIS and final rule determinations. The draft report must be submitted within 3 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 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or 3 months after the submittal of the draft if NMFS does not provide comments.
§ 218.76   Letters of Authorization (LOA).
(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 revoked, may be effective for a period of time not to exceed December 20, 2025.
(c) If an LOA expires prior to December 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, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 218.77(c)(1)) required by an LOA issued under this subpart, the Navy must apply for and obtain a modification of the LOA as described 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 practicable 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 findings made for the total taking allowable under the regulations in this subpart.
(g) Notice of issuance or denial of the LOA(s) must be published in the Federal Register within 30 days of a determination.
§ 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 applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) were implemented.
(b) For LOA modification or renewal requests by the applicant that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result 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 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 circumstances:
(1) After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of planned LOA in the Federal Register and solicit public comment.
(2) 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 notice or opportunity for public comment. Notice would be published in the Federal Register within 30 days of the action.
§§ 218.78-218.79   [Reserved]
§ 218.80   Specified activity and geographical 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 Atlantic 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-degree 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 occurs incidental to the Navy conducting training and testing activities, including:
(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
(iii) Office of Naval Research Testing Activities.
§ 218.81   Effective dates.
Regulations in this subpart are effective from December 23, 2019 through November 13, 2025.
§ 218.82   Permissible methods of taking.
(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 intentionally, 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, 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 § 218.80(c) is limited to the following species:
Table 1 to § 218.82
§ 218.83   Prohibitions.
Notwithstanding incidental takings contemplated in § 218.82(a) and authorized 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 specified § 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 Fisheries Service (NMFS) determines such taking results in more than a negligible impact on the species or stocks of such marine mammal.