Title 50—Wildlife and Fisheries--Volume 1
PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
§ 218.144   Mitigation requirements.
(a) When conducting the activities identified in § 218.140(c), the mitigation measures contained in any LOAs issued under §§ 216.106 of this chapter and 218.146 must be implemented. These mitigation measures include, but are not limited to:
(1) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wherever an applicable training or testing activity takes place within the NWTT Study Area for each applicable activity category or stressor category and includes acoustic stressors ( i.e., active sonar, weapons firing noise), explosive stressors ( i.e., sonobuoys, torpedoes, medium-caliber and large-caliber projectiles, missiles, bombs, Mine Countermeasure and Neutralization activities, mine neutralization involving Navy divers), 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, non-explosive bombs and mine shapes).
(i) Environmental awareness and education. Appropriate Navy personnel (including civilian personnel) involved in mitigation and training or testing activity reporting under the specified activities will complete the environmental compliance training modules identified in their career path training plan, as specified in the LOAs.
(ii) Active sonar. Active sonar includes low-frequency active sonar, mid-frequency active sonar, and high-frequency active sonar. For vessel-based active sonar 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 active sonar 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).
(A) Number of Lookouts and observation platform for hull-mounted sources. For hull-mounted sources, the Navy must have one Lookout for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at anchor (including pierside), and two Lookouts for platforms without space or manning restrictions while underway (at the forward part of the ship).
(B) Number of Lookouts and observation platform for sources not hull-mounted. For sources that are not hull-mounted, the Navy must have one Lookout on the ship or aircraft conducting the activity.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of active sonar transmission until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(ii)(F) are met for marine mammals.
(D) During activity for low-frequency active sonar at 200 decibels (dB) and hull-mounted mid-frequency active sonar. During the activity, for low-frequency active sonar at 200 dB and hull-mounted mid-frequency active sonar, Navy personnel must observe the following mitigation zones for marine mammals.
( 1 ) Powerdowns for marine mammals. Navy personnel must power down active sonar transmission by 6 dB if marine mammals are observed within 1,000 yard (yd) of the sonar source; Navy personnel must power down an additional 4 dB (10 dB total) if marine mammals are observed within 500 yd of the sonar source.
( 2 ) Shutdowns for marine mammals. Navy personnel must cease transmission if cetaceans are observed within 200 yd of the sonar source in any location in the Study Area; Navy personnel must cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source and cease transmission if pinnipeds in NWTT Inland Waters are observed within 100 yd of the sonar source (except if hauled out on, or in the water near, man-made structures and vessels).
(E) During activity for low-frequency active sonar below 200 dB, mid-frequency active sonar not hull-mounted, and high-frequency sonar. During the activity, for low-frequency active sonar below 200 dB, mid-frequency active sonar sources that are not hull-mounted, and high-frequency sonar, Navy personnel must observe the following mitigation zones for marine mammals. Navy personnel must cease transmission if cetaceans are observed within 200 yd of the sonar source in any location in the Study Area. Navy personnel must cease transmission if pinnipeds in the NWTT Offshore Area or Western Behm Canal are observed within 200 yd of the sonar source. Navy personnel must cease transmission if pinnipeds in NWTT Inland Waters are observed within 100 yd of the sonar source (except if hauled out on, or in the water near, man-made structures and vessels).
(F) Co mmencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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, the Lookout concludes that dolphins 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).
(iii) Weapons firing noise. Weapons firing noise associated with large-caliber gunnery activities.
(A) 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 described for “Explosive medium-caliber and large-caliber projectiles” or for “Small-, medium-, and large-caliber non-explosive practice munitions” in paragraphs (a)(1)(vi)(A) and (a)(1)(xiii)(A) of this section.
(B) Mitigation zone. Thirty degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired.
(C) Prior to activity. Prior to the initial start of the activity, Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of weapons firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(iii)(E) of this section are met for marine mammals.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease weapons firing.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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.
(iv) Explosive sonobuoys.
(A) 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zone. 600 yd around an explosive sonobuoy.
(C) 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 conduct passive acoustic monitoring for marine mammals; personnel must use information from detections to assist visual observations. Navy personnel also must visually observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of sonobuoy or source/receiver pair detonations until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(iv)(E) of this section are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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, 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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(v) Explosive torpedoes.
(A) 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zone. 2,100 yd around the intended impact location.
(C) Prior to activity. Prior to the initial start of the activity ( e.g., during deployment of the target), Navy personnel must conduct passive acoustic monitoring for marine mammals; personnel must use the information from detections to assist visual observations. Navy personnel also must visually observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(v)(E) of this section are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(vi) Explosive medium-caliber and large-caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation applies to activities using a surface target.
(A) Number of Lookouts and observation platform. One Lookout must be on the vessel conducting the activity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described for “Weapons firing noise” in paragraph (a)(1)(iii)(A) of this section. If additional platforms are participating in the activity, Navy personnel positioned in those assets ( e.g., safety observers, evaluators) must support observing the mitigation zone for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zones. 600 yd around the intended impact location for explosive medium-caliber projectiles. 1,000 yd around the intended impact location for explosive large-caliber projectiles.
(C) Prior to activity. Prior to the initial start of the activity ( e.g., when maneuvering on station), Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(vi)(E) of this section are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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 of additional sightings. The mitigation zone has been clear from any additional sightings for 30 min for vessel-based firing; or
( 4 ) Impact location transit. For 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.
(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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(vii) Explosive missiles. Aircraft-deployed explosive missiles. Mitigation applies to activities using a surface target.
(A) 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zone. 2,000 yd around the intended impact location.
(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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(vii)(E) of this section are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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 of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.
(F) After activity. After completion of the activity (e.g., prior to maneuvering off station), Navy personnel must, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on 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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(viii) Explosive bombs.
(A) 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zone. 2,500 yd around the intended target.
(C) 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 and marine mammals; if floating vegetation or a marine mammals is observed, Navy personnel must relocate or delay the start of bomb deployment until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(viii)(E) of this section are met for marine mammals.
(D) During activity. During the 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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
( 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.
(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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(ix) Explosive Mine Countermeasure and Neutralization activities.
(A) Number of Lookouts and observation platform. One Lookout must be positioned on a vessel or in an aircraft when implementing the smaller mitigation zone. Two Lookouts must be positioned (one in an aircraft and one on a small boat) when implementing the larger mitigation zone. 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zones. 600 yd around the detonation site for activities using ≤5 lb net explosive weight. 2,100 yd around the detonation site for activities using >5-60 lb net explosive weight.
(C) Prior to activity. Prior to the 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of detonations until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(ix)(E) are met for marine mammals.
(D) 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. Navy personnel must use the smallest practicable charge size for each activity. Navy personnel must conduct activities in daylight hours only and in Beaufort Sea state number 3 conditions or less.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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 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), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(x) Explosive mine neutralization activities involving Navy divers.
(A) Number of Lookouts and observation platform.
( 1 ) Lookouts on small boats. Two Lookouts on two small boats with one Lookout each, one of which must be a Navy biologist.
( 2 ) Divers. All divers placing the charges on mines must support the Lookouts while performing their regular duties and report applicable sightings to the lead Lookout, the supporting small boat, or the Range Safety Officer.
( 3 ) 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 for applicable biological resources, including marine mammals, while performing their regular duties.
(B) Mitigation zone. 500 yd around the detonation site during activities using > 0.5-2.5 lb net explosive weight.
(C) Prior to activity. Prior to the initial start of the activity (starting 30 min before the first planned detonation), Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of detonations until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(x)(E) are met for marine mammals. A Navy biologist must serve as the lead Lookout and must make the final determination that the mitigation zone is clear of any floating vegetation or marine mammals, prior to the commencement of a detonation. The Navy biologist must maintain radio communication with the unit conducting the event and the other Lookout.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease detonations. To the maximum extent practicable depending on mission requirements, safety, and environmental conditions, Navy personnel must position boats near the midpoint 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, 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. Navy personnel must only use positively controlled charges ( i.e., no time-delay fuses). Navy personnel must use the smallest practicable charge size for each activity. All activities must be conducted in Beaufort sea state number 2 conditions or better and must not be conducted in low visibility conditions.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted animal to leave the mitigation zone prior to the initial start of the activity (by delaying the start to ensure the mitigation zone is clear for 30 min) or during the activity (by not recommencing detonations) until one of the following conditions has been met:
( 1 ) Observed exiting. The animal is 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 30 min.
(F) After activity. After each detonation and completion of an activity, the Navy must observe for marine mammals for 30 min in the vicinity of where detonations occurred and immediately downstream of the detonation location; if any injured or dead marine mammals are observed, Navy personnel must follow established incident reporting procedures. If additional platforms are supporting this activity ( e.g., providing range clearance), Navy personnel on these assets must assist in the visual observation of the area where detonations occurred.
(xi) Vessel movement. The 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, and during Transit Protection Program exercises or other events involving escort vessels); the vessel is submerged or operated autonomously; or when impractical based on mission requirements ( e.g., during test body retrieval by range craft).
(A) Number of Lookouts and observation platform. One Lookout must be on the vessel that is underway.
(B) Mitigation zones.
( 1 ) Whales. 500 yd around whales.
( 2 ) Marine mammals other than whales: Surface vessels. 200 yd around marine mammals other than whales (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels) for surface vessels (which do not include small boats).
( 3 ) Marine mammals other than whales: Small boats. 100 yd around marine mammals other than whales (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels) for small boats, such as range craft.
(C) During activity. When underway, Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must maneuver to maintain distance.
(D) Incident reporting procedures. If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures.
(xii) Towed in-water devices. Mitigation applies to devices that are towed from a manned surface platform or manned aircraft, or when a manned support craft is already participating in an activity involving in-water devices being towed by unmanned platforms. The mitigation will not be applied if the safety of the towing platform or in-water device is threatened.
(A) Number of Lookouts and observation platform. One Lookout must be positioned on a manned towing platform or support craft.
(B) Mitigation zones.
( 1 ) Mitigation zone: In-water devices towed by aircraft or surface ships. 250 yd around marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels) for in-water devices towed by aircraft or surface ships.
( 2 ) Mitigation zone: In-water devices towed by small boats. 100 yd around marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels) for in-water devices towed by small boats, such as range craft.
(C) During activity. During the 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.
(xiii) Small-, medium-, and large-caliber non-explosive practice munitions. Gunnery activities using small-, medium-, and large-caliber non-explosive practice munitions. Mitigation applies to activities using a surface target.
(A) 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)(1)(iii)(A) of this section.
(B) Mitigation zone. 200 yd around the intended impact location.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(xiii)(E) are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting before or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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 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; 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.
(xiv) Non-explosive missiles. Aircraft-deployed non-explosive missiles. Mitigation applies to activities using a surface target.
(A) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft.
(B) Mitigation zone. 900 yd around the intended impact location.
(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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(xiv)(E) of this section are met for marine mammals.
(D) 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.
(E) Commencement/recommencement conditions after marine mammal sighting prior to or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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.
(xv) Non-explosive bombs and mine shapes. Non-explosive bombs and non-explosive mine shapes during mine laying activities.
(A) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft.
(B) Mitigation zone. 1,000 yd around the intended target.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of bomb deployment or mine laying until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(xv)(E) of this section are met for marine mammals.
(D) During activity. During the activity ( e.g., during approach of the target or intended minefield location), Navy personnel must observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel must cease bomb deployment or mine laying.
(E) Commencement/recommencement conditions after marine mammal sighting prior to or during activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by 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 ) 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.
(2) 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.
(i) Marine Species Coastal Mitigation Area (year round unless specified as seasonal).
(A) Within 50 nmi from shore in the Marine Species Coastal Mitigation Area.
( 1 ) Prohibited activities. The Navy must not conduct: Explosive training activities; explosive testing activities (with the exception of explosive Mine Countermeasure and Neutralization Testing activities); and non-explosive missile training activities.
( 2 ) Seasonal awareness notification messages. The Navy must issue annual seasonal awareness notification messages to alert Navy ships and aircraft to the possible presence of increased concentrations of Southern Resident killer whales from December 1 to June 30, humpback whales from May 1 to December 31, and gray whales from May 1 to November 30. For safe navigation and to avoid interactions with large whales, the Navy must instruct vessels to remain vigilant to the presence of Southern Resident killer whales, humpback whales, and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. 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.
(B) Within 20 nmi from shore in the Marine Species Coastal Mitigation Area.
( 1 ) Surface ship hull-mounted MF1 mid-frequency active sonar. The Navy must not conduct more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined.
( 2 ) Mine Countermeasure and Neutralization Testing from July 1 to September 30. To the maximum extent practical, the Navy must conduct explosive Mine Countermeasure and Neutralization Testing from July 1 to September 30 when operating within 20 nmi from shore.
( 3 ) Mine Countermeasure and Neutralization Testing from October 1 to June 30. From October 1 to June 30, the Navy must not conduct more than one explosive Mine Countermeasure and Neutralization Testing event, not to exceed the use of 20 explosives from bin E4 and 3 explosives from bin E7 annually, and not to exceed the use of 60 explosives from bin E4 and 9 explosives from bin E7 over the seven-year period of the rule.
( 4 ) Large-caliber gunnery training activities and non-explosive bombing training. The Navy must not conduct non-explosive large-caliber gunnery training activities and non-explosive bombing training activities.
(C) Within 12 nmi from shore in the Marine Species Coastal Mitigation Area.
( 1 ) Anti-submarine warfare tracking exercise—helicopter,—maritime patrol aircraft,—ship, or—submarine training and anti-submarine warfare torpedo exercise—submarine training. The Navy must not conduct Anti-Submarine Warfare Tracking Exercise—Helicopter,—Maritime Patrol Aircraft,—Ship, or—Submarine training activities (which involve the use of mid-frequency or high-frequency active sonar) or non-explosive Anti-Submarine Warfare Torpedo Exercise—Submarine training activities (which involve the use of mid-frequency or high-frequency active sonar).
( 2 ) Unmanned Underwater Vehicle Training. The Navy must not conduct more than one Unmanned Underwater Vehicle Training event within 12 nmi from shore at the Quinault Range Site. In addition, Unmanned Underwater Vehicle Training events within 12 nmi from shore at the Quinault Range Site must be cancelled or moved to another training location if Southern Resident killer whales are detected at the planned training location during the event planning process, or immediately prior to the event, as applicable.
( 3 ) Explosive use during Mine Countermeasure and Neutralization testing. During explosive Mine Countermeasure and Neutralization Testing, the Navy must not use explosives in bin E7 closer than 6 nmi from shore in the Quinault Range Site.
( 4 ) Non-explosive small- and medium-caliber gunnery training. The Navy must not conduct non-explosive small- and medium-caliber gunnery training activities.
(D) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(i)(A)( 1 ); (a)(2)(i)(B); or (a)(2)(i)(C) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(ii) Olympic Coast National Marine Sanctuary Mitigation Area (year-round).
(A) Surface ship hull-mounted MF1 mid-frequency active sonar during training. The Navy must not conduct more than 32 hours of surface ship hull-mounted MF1 mid-frequency active sonar during training annually.
(B) Non-explosive bombing training. The Navy must not conduct non-explosive bombing training activities.
(C) Surface ship hull-mounted MF1 mid-frequency active sonar during testing. The Navy must not conduct more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined.
(D) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Countermeasure and Neutralization Testing activities.
(E) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(ii)(A), (B), (C), or (D) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(iii) Juan de Fuca Eddy Marine Species Mitigation Area (year-round).
(A) Surface ship hull-mounted MF1 mid-frequency active sonar during testing. The Navy must not conduct more than a total of 33 hours of surface ship hull-mounted MF1 mid-frequency active sonar during testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, in the Juan de Fuca Eddy Marine Species Mitigation Area, and in the Olympic Coast National Marine Sanctuary Mitigation Area combined.
(B) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Countermeasure and Neutralization Testing activities.
(C) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(iii)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(iv) Stonewall and Heceta Bank Humpback Whale Mitigation Area (May 1-November 30).
(A) Surface ship hull-mounted MF1 mid-frequency active sonar. The Navy must not use surface ship hull-mounted MF1 mid-frequency active sonar during training and testing from May 1 to November 30.
(B) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Countermeasure and Neutralization testing from May 1 to November 30.
(C) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(iv)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(v) Point St. George Humpback Whale Mitigation Area (July 1-November 30).
(A) Surface ship hull-mounted MF1 mid-frequency active sonar. The Navy must not use surface ship hull-mounted MF1 mid-frequency active sonar during training or testing from July 1 to November 30.
(B) Explosive Mine Countermeasure and Neutralization testing. The Navy must not conduct explosive Mine Countermeasure and Neutralization Testing from July 1 to November 30.
(C) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(v)(A) or (B) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(vi) Northern Puget Sound Gray Whale Mitigation Area (March 1-May 31).
(A) Civilian port defense—homeland security anti-terrorism/force protection exercises. The Navy must not conduct Civilian Port Defense-Homeland Security Anti-Terrorism/Force Protection Exercises from March 1 to May 31.
(B) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraph (a)(2)(vi)(A) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(vii) Puget Sound and Strait of Juan de Fuca Mitigation Area (year-round unless specified as seasonal).
(A) Active sonar use. The Navy must not use low-frequency, mid-frequency, or high-frequency active sonar during training or testing within the Puget Sound and Strait of Juan de Fuca Mitigation Area, unless a required element ( i.e., a criterion necessary for the success of the event) necessitates that the activity be conducted in NWTT Inland Waters during:
( 1 ) Unmanned underwater vehicle training.
( 2 ) Civilian port defense—homeland security anti-terrorism/force protection exercises.
( 3 ) Activities conducted by Naval Sea Systems Command at designated locations.
( 4 ) Pierside sonar maintenance or testing at designated locations.
(B) Active sonar source levels. The Navy must use the lowest active sonar source levels practical to successfully accomplish each event. Naval units must obtain permission from the appropriate designated Command authority prior to commencing pierside maintenance or testing with hull-mounted mid-frequency active sonar.
(C) Unmanned underwater vehicle training. The Navy must not conduct more than one Unmanned Underwater Vehicle Training activity annually at the Navy 3 OPAREA, Navy 7 OPAREA, and Manchester Fuel Depot ( i.e., a maximum of one event at each location).
(D) Use of explosives —( 1 ) Explosives during testing. The Navy must not use explosives during testing.
( 2 ) Explosives during training. The Navy must not use explosives during training except at the Hood Canal EOD Range and Crescent Harbor EOD Range during explosive mine neutralization activities involving the use of Navy divers.
( 3 ) Explosives in bin E4 or above. The Navy must not use explosives in bin E4 (>2.5-5 lb. net explosive weight) or above, and must instead use explosives in bin E0 (< 0.1 lb. net explosive weight) or bin E3 (>0.5-2.5 lb. net explosive weight).
( 4 ) Explosives in bin E3 during February, March, and April at the Hood Canal EOD Range. During February, March, and April at the Hood Canal EOD Range, the Navy must not use explosives in bin E3 (>0.5-2.5 lb. net explosive weight), and must instead use explosives in bin E0 (< 0.1 lb. net explosive weight).
( 5 ) Explosives in bin E3 during August, September, and October at the Hood Canal EOD Range. During August, September, and October at the Hood Canal EOD Range, the Navy must not use explosives in bin E3 (>0.5-2.5 lb. net explosive weight) and must instead use explosives in bin E0 (< 0.1 lb. net explosive weight) to the maximum extent practical unless necessitated by mission requirements.
( 6 ) Explosives at the Crescent Harbor EOD Range. At the Crescent Harbor EOD Range, the Navy must conduct explosive activities at least 1,000 m from the closest point of land.
(E) Non-explosive live fire events. The Navy must not conduct non-explosive live fire events in the mitigation area (except firing blank weapons), including gunnery exercises, missile exercises, torpedo exercises, bombing exercises, and Kinetic Energy Weapon Testing.
(F) Coordination with Navy biologists. Navy event planners must coordinate with Navy biologists during the event planning process prior to conducting the activities listed in paragraphs (a)(2)(vii)(F)( 1 ), ( 2 ), ( 3 ), and ( 4 ) of this section. Navy biologists must work with NMFS and must initiate communication with the appropriate marine mammal detection networks to determine the likelihood of applicable marine mammal species presence in the planned training location. Navy biologists must notify event planners of the likelihood of species presence. To the maximum extent practical, Navy planners must use this information when planning specific details of the event ( e.g., timing, location, duration) to avoid planning activities in locations or seasons where species presence is expected. The Navy must ensure environmental awareness of event participants. Environmental awareness will help alert participating crews to the possible presence of applicable species in the training location. Lookouts must use the information to assist visual observation of applicable mitigation zones and to aid in the implementation of procedural mitigation. Unmanned Underwater Vehicle Training events at the Navy 3 OPAREA, Manchester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and Navy 7 OPAREA must be cancelled or moved to another training location if the presence of Southern Resident killer whales is reported through available monitoring networks during the event planning process, or immediately prior to the event, as applicable.
( 1 ) Unmanned underwater vehicle training. Unmanned Underwater Vehicle Training at the Navy 3 OPAREA, Manchester Fuel Depot, Crescent Harbor Explosive Ordnance Disposal Range, and Navy 7 OPAREA (for Southern Resident killer whales);
( 2 ) Civilian port defense—homeland security anti-terrorism/force protection exercises. Civilian Port Defense—Homeland Security Anti-Terrorism/Force Protection Exercises (for Southern Resident killer whales and gray whales);
( 3 ) Explosive mine neutralization activities involving the use of Navy divers. Explosive mine neutralization activities involving the use of Navy divers (for Southern Resident killer whales); and
( 4 ) Small boat attack exercises. Small Boat Attack Exercises, which involve firing blank small-caliber weapons (for Southern Resident killer whales and gray whales).
(G) Seasonal awareness notification messages. The Navy must issue annual seasonal awareness notification messages to alert Navy ships and aircraft operating within the Puget Sound and Strait of Juan de Fuca Mitigation Area to the possible presence of concentrations of Southern Resident killer whales from July 1 to November 30 in Puget Sound and the Strait of Juan de Fuca, and concentrations of gray whales from March 1 to May 31 in the Strait of Juan de Fuca and northern Puget Sound. For safe navigation and to avoid interactions with large whales, the Navy must instruct vessels to remain vigilant to the presence of Southern Resident killer whales and gray whales that may be vulnerable to vessel strikes or potential impacts from training and testing activities. Platforms must use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.
(H) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraphs (a)(2)(vii)(A), (B), (C), (D), or (E) of this section, Navy personnel must obtain permission from the appropriate designated Command authority prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(3) Availability for Subsistence Use. The Navy must notify the following Alaskan Native communities of the issuance of Notices to Mariners of Navy operations that involve restricting access in the Western Behm Canal at least 72 hours in advance: Central Council of the Tlingit and Haida Indian Tribes, Ketchikan Indian Corporation, Organized Village of Saxman, and Metlakatla Indian Community, Annette Island Reserve.
(b) [Reserved]
§ 218.145   Requirements for monitoring and reporting.
(a) Notification of take. Navy personnel must notify NMFS immediately (or as soon as operational security considerations allow) if the specified activity identified in § 218.140 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 this subpart.
(b) Monitoring and reporting under the LOAs. The Navy must conduct all monitoring and reporting required under the LOAs, including abiding by the U.S. Navy's Marine Species Monitoring Program. 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 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/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
(d) Annual NWTT Study Area marine species monitoring report. The Navy must submit an annual report of the NWTT Study Area monitoring, which will be included in a Pacific-wide monitoring report including results specific to the NWTT Study Area, describing the implementation and results from the previous calendar year. Data collection methods must be standardized across Pacific Range Complexes including the Mariana Islands Training and Testing (MITT), Hawaii-Southern California Training and Testing (HSTT), NWTT, and Gulf of Alaska (GOA) 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 three months after the end of the calendar year, or within three months after the conclusion of the monitoring year, to be determined by the adaptive management process. NMFS will submit comments or questions on the report, if any, within three months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or three months after submittal of the draft if NMFS does not provide comments on the draft report. This report will describe progress of knowledge made with respect to intermediate scientific objectives within the NWTT 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. 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 NWTT, HSTT, GOA, and MITT Study Areas.
(e) NWTT Annual Training Exercise Report and Annual Testing Activity Report. Each year, the Navy must submit two preliminary reports (Quick Look Reports) detailing the status of applicable sound sources within 21 days after the anniversary of the date of issuance of each LOA to the Director, Office of Protected Resources, NMFS. The Navy must also submit detailed reports (NWTT Annual Training Exercise Report and Annual Testing Activity Report) to the Director, Office of Protected Resources, NMFS, within three months after the one-year anniversary of the date of issuance of the LOAs. NMFS will submit comments or questions on the reports, if any, within one month of receipt. The reports will be considered final after the Navy has addressed NMFS' comments, or one month after submittal of the draft if NMFS does not provide comments on the draft reports. The NWTT Annual Training Exercise Report and Annual Testing Activity Report can be consolidated with other exercise and activity reports from other range complexes in the Pacific Ocean for a single Pacific Training Exercise and Testing Activity Report, if desired. The annual reports must contain a summary of all sound sources used (total hours or quantity of each bin of sonar or other non-impulsive source; total annual number of each type of explosive; and total annual expended/detonated rounds (missiles, bombs, sonobuoys, etc. ) for each explosive bin). The annual reports will also contain both the current year's sonar and explosive use data as well as cumulative sonar and explosive use quantity from previous years' reports. Additionally, if there were any changes to the sound source allowance in a given year, or cumulatively, the report must include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the 2020 NWTT FSEIS/OEIS and MMPA final rule. The annual report must also include details regarding specific requirements associated with the mitigation areas listed in § 218.144(a)(2). The final annual/close-out report at the conclusion of the authorization period (year seven) will serve as the comprehensive close-out report and include both the final year annual incidental take compared to annual authorized incidental take as well as cumulative seven-year incidental take compared to seven-year authorized incidental take. The Annual Training Exercise Report and Annual Testing Activity Report must include the following information.
(1) Summary of sources used. This section of the report must include the following information summarized from the authorized sound sources used in all training and testing events:
(i) Sonar and other transducers. Total annual hours or quantity (per the LOA) of each bin of sonar or other transducers, and
(ii) Explosives. Total annual expended/detonated ordinance (missiles, bombs, sonobuoys, etc.) for each explosive bin.
(2) [Reserved]
(f) Annual classified reports. Within the annual classified training exercise and testing activity reports, separate from the unclassified reports described in paragraphs (a) through (e) of this section, the Navy must specifically include the information described in paragraphs (f)(1) and (2) of this section.
(1) Olympic Coast National Marine Sanctuary Mitigation Area. Total hours of authorized low-frequency, mid-frequency, and high-frequency active sonar (all bins, by bin) used during training and testing annually within the Olympic Coast National Marine Sanctuary Mitigation Area; and
(2) Surface ship hull-mounted MF1 mid-frequency active sonar. Total hours of surface ship hull-mounted MF1 mid-frequency active sonar used in the following mitigation areas:
(i) Testing annually in three combined areas. Testing annually within 20 nmi from shore in the Marine Species Coastal Mitigation Area, the Juan de Fuca Eddy Marine Species Mitigation Area, and the Olympic Coast National Marine Sanctuary Mitigation Area combined;
(ii) Stonewall and Heceta Bank Humpback Whale Mitigation Area. Training and testing from May 1 to November 30 within the Stonewall and Heceta Bank Humpback Whale Mitigation Area; and
(iii) Point St. George Humpback Whale Mitigation Area. Training and testing from July 1 to November 30 within the Point St. George Humpback Whale Mitigation Area.
(g) Final close-out report. The final (year seven) draft annual/close-out report must be submitted within three 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 three months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or three months after submittal of the draft if NMFS does not provide comments.
§ 218.146   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to the regulations in this subpart, the Navy must apply for and obtain LOAs in accordance with § 216.106 of this chapter.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 218.147(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 § 218.147.
(e) Each LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Geographic areas for incidental taking;
(3) Means of effecting the least practicable adverse impact ( i.e., mitigation) on the species and stocks of marine mammals and their habitat; and
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA(s) must be based on a determination that the level of taking is consistent with the 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.
§ 218.147   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 218.146 for the activity identified in § 218.140(c) may be renewed or modified upon request by the 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 LOAs 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 218.146 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, as part of an adaptive management process.
(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 report and annual exercise reports 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 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 218.146, 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.
§ 218.148   [Reserved]
§ 218.150   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 Gulf of Alaska (GOA) Study Area is entirely at sea and is comprised of three areas: a TMAA, a warning area, and the WMA located south and west of the TMAA. The TMAA and WMA are temporary areas established within the GOA for ships, submarines, and aircraft to conduct training activities. The TMAA is a polygon roughly resembling a rectangle oriented from northwest to southeast, approximately 300 nautical miles (nmi; 556 km) in length by 150 nmi (278 km) in width, located south of Montague Island and east of Kodiak Island. The warning area overlaps and extends slightly beyond the northern corner of the TMAA. The WMA provides an additional 185,806 nmi 2 of surface, sub-surface, and airspace training area to support activities occurring within the TMAA. The boundary of the WMA follows the bottom of the slope at the 4,000 m contour line.
(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy conducting training activities, including:
(1) Anti-Submarine Warfare; and
(2) Surface Warfare.
§ 218.151   Effective dates and definitions.
(a) Regulations in this subpart are effective February 3, 2023 through February 2, 2030.
(b) In additions to the definitions contained in section 2 of the Marine Mammal Protection Act (MMPA), 16 U.S.C. 1362, and § 218.103, the following definitions apply to this subpart:
(1) GOA Study Area means the area described in § 218.150(b).
(2) TMAA means Temporary Maritime Activities Area, as described in § 218.150(b).
(3) WMA means Western Maneuver Area, as described in § 218.150(b).
(4) LOA means a Letter of Authorization issued under §§ 216.106 of this chapter and 218.156.
(5) MTE means major training exercise.
(6) Navy means United States Department of the Navy.
(7) Navy personnel means active-duty and reserve uniformed Navy personnel and Navy civil servants.
(8) Navy contractor means any individual, firm, corporation, partnership, association, or other legal non-Federal entity that enters into a contract directly with the Navy to furnish services, supplies, or construction and is performing or acting in furtherance of those duties.
(9) Lookout means an individual designated the responsibility of visually observing mitigation zones.
(10) Training activities means military readiness activities described in § 218.150.
§ 218.152   Permissible methods of taking.
(a) Under an LOA issued pursuant to §§ 216.106 of this chapter and 218.156, the Navy may incidentally, but not intentionally, take marine mammals within the TMAA only, by Level A harassment and Level B harassment associated with the use of active sonar and other acoustic sources and explosives, provided the activity is in compliance with all terms, conditions, and requirements of this subpart and the applicable LOA.
(b) The incidental take of marine mammals by the activities listed in § 218.150(c) is limited to the following species:
Table 1 to § 218.152( b )
§ 218.153   Prohibitions.
(a) Except for incidental takings contemplated in § 218.152(a) and authorized by an LOA issued under §§ 216.106 of this chapter and 218.156, it shall be unlawful for any person to do any of the following in connection with the activities listed in § 218.150(c):
(1) 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 218.156;
(2) Take any marine mammal not specified in § 218.152(b);
(3) Take any marine mammal specified in § 218.152(b) in any manner other than as specified in the LOA; or
(4) Take a marine mammal specified in § 218.152(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.
(b) [Reserved]
§ 218.154   Mitigation requirements.
(a) When conducting the activities identified in § 218.150(c), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.156 must be implemented. If Navy contractors are serving in a role similar to Navy personnel, Navy contractors will follow the mitigation applicable to Navy personnel. These mitigation measures include, but are not limited to:
(1) Procedural mitigation. Procedural mitigation is mitigation that the Navy must implement whenever and wherever an applicable training activity takes place within the GOA Study Area for acoustic stressors ( i.e., active sonar, weapons firing noise), explosive stressors ( i.e., large-caliber projectiles, bombs), 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 bombs).
(i) Environmental awareness and education. Appropriate Navy personnel (including civilian personnel) involved in mitigation and training activity reporting under the specified activities must complete the environmental compliance training modules identified in their career path training plan, as specified in the LOA.
(ii) Active sonar. Active sonar includes mid-frequency active sonar and high-frequency active sonar. For vessel-based active sonar 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 active sonar 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).
(A) Number of Lookouts and observation platform for hull-mounted sources. For hull-mounted sources, the Navy must have one Lookout for platforms with space or manning restrictions while underway (at the forward part of a small boat or ship) and platforms using active sonar while moored or at anchor; and two Lookouts for platforms without space or manning restrictions while underway (at the forward part of the ship).
(B) Number of Lookouts and observation platform for sources not hull-mounted. For sources that are not hull-mounted, the Navy must have one Lookout on the ship or aircraft conducting the activity.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of active sonar transmission until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(ii)(F) of this section are met for marine mammals.
(D) During the activity for hull-mounted mid-frequency active sonar. During the activity, for hull-mounted mid-frequency active sonar, Navy personnel must observe the following mitigation zones for marine mammals.
( 1 ) Powerdowns for marine mammals. Navy personnel must power down active sonar transmission by 6 dB if a marine mammal is observed within 1,000 yd (914.4 m) of the sonar source; Navy personnel must power down active sonar transmission an additional 4 dB (10 dB total) if a marine mammal is observed within 500 yd (457.2 m) of the sonar source.
( 2 ) Shutdowns for marine mammals. Navy personnel must cease transmission if a marine mammal is observed within 200 yd (182.9 m) of the sonar source.
(E) During the activity, for mid-frequency active sonar sources that are not hull-mounted, and high-frequency active sonar. During the activity, for mid-frequency active sonar (MFAS) sources that are not hull-mounted and high-frequency active sonar (HFAS), Navy personnel must observe the mitigation zone for marine mammals. Navy personnel must cease transmission if a marine mammal is observed within 200 yd (182.9 m) of the sonar source.
(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 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 minutes 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, the Lookout concludes that dolphins 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).
(iii) Weapons firing noise. Weapons firing noise associated with large-caliber gunnery activities.
(A) 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 in paragraphs (a)(1)(iv)(A) and (a)(1)(viii)(A) of this section.
(B) Mitigation zone. Thirty degrees on either side of the firing line out to 70 yd (64 m) from the muzzle of the weapon being fired.
(C) Prior to activity. Prior to the initial start of the activity, Navy personnel must observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of weapons firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(iii)(E) of this section are met for marine mammals.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if a marine mammal is observed, Navy personnel must cease weapons 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 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.
(iv) Explosive large-caliber projectiles. Gunnery activities using explosive large-caliber projectiles. Mitigation applies to activities using a surface target.
(A) Number of Lookouts and observation platform. One Lookout must be on the vessel or aircraft conducting the activity. Depending on the activity, the Lookout could be the same as the one described in paragraph (a)(1)(iii)(A) 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 for marine mammals while performing their regular duties.
(B) Mitigation zones. 1,000 yd (914.4 m) around the intended impact location.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(iv)(E) of this section are met for marine mammals.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if a marine mammal is 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;
( 3 ) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 30 minutes; 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.
(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), Navy personnel positioned on these Navy assets must assist in the visual observation of the area where detonations occurred.
(v) Explosive bombs —(A) 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 for marine mammals while performing their regular duties.
(B) Mitigation zone. 2,500 yd (2,286 m) around the intended target.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of bomb deployment until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(v)(E) of this section are met for marine mammals.
(D) During activity. During the activity ( e.g., during target approach), Navy personnel must observe the mitigation zone for marine mammals; if a marine mammal is observed, Navy personnel must cease bomb deployment.
(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 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
( 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.
(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), Navy personnel positioned on these Navy assets must assist in the visual observation of the area where detonations occurred.
(vi) Vessel movement. The 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 submerged or operated autonomously; or when impractical based on mission requirements ( e.g., during Vessel Visit, Board, Search, and Seizure activities as military personnel from ships or aircraft board suspect vessels).
(A) Number of Lookouts and observation platform. One or more Lookouts must be on the underway vessel. If additional watch personnel are positioned on the underway vessel, those personnel ( e.g., persons assisting with navigation or safety) must support observing for marine mammals while performing their regular duties.
(B) Mitigation zone —( 1 ) Whales. 500 yd (457.2 m) around the vessel for whales.
( 2 ) Marine mammals other than whales. 200 yd (182.9 m) around the vessel for all marine mammals other than whales (except those intentionally swimming alongside or closing in to swim alongside vessels, such as bow-riding or wake-riding dolphins).
(C) When underway. Navy personnel must observe the direct path of the vessel and waters surrounding the vessel for marine mammals. If a marine mammal is observed in the direct path of the vessel, Navy personnel must maneuver the vessel as necessary to maintain the appropriate mitigation zone distance. If a marine mammal is observed within waters surrounding the vessel, Navy personnel must maintain situational awareness of that animal's position. Based on the animal's course and speed relative to the vessel's path, Navy personnel must maneuver the vessel as necessary to ensure that the appropriate mitigation zone distance from the animal continues to be maintained.
(D) Incident reporting procedures. If a marine mammal vessel strike occurs, Navy personnel must follow the established incident reporting procedures.
(vii) Towed in-water devices. Mitigation applies to devices that are towed from a manned surface platform or manned aircraft, or when a manned support craft is already participating in an activity involving in-water devices being towed by unmanned platforms. The mitigation will not be applied if the safety of the towing platform or in-water device is threatened.
(A) Number of Lookouts and observation platform. One Lookout must be positioned on a manned towing platform or support craft.
(B) Mitigation zone. 250 yd (228.6 m) around the towed in-water device for marine mammals (except those intentionally swimming alongside or choosing to swim alongside towing vessels, such as bow-riding or wake-riding dolphins).
(C) During activity. During the activity ( i.e., when towing an in-water device), Navy personnel must observe the mitigation zone for marine mammals; if a marine mammal is observed, Navy personnel must maneuver to maintain distance.
(viii) Small-, medium-, and large-caliber non-explosive practice munitions. Gunnery activities using small-, medium-, and large-caliber non-explosive practice munitions. Mitigation applies to activities using a surface target.
(A) 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 in paragraph (a)(1)(iii)(A) of this section.
(B) Mitigation zone. 200 yd (182.9 m) around the intended impact location.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of firing until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(viii)(E) of this section are met for marine mammals.
(D) During activity. During the activity, Navy personnel must observe the mitigation zone for marine mammals; if a marine mammal is 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;
( 3 ) Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 minutes for aircraft-based firing or 30 minutes 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.
(ix) Non-explosive bombs —(A) Number of Lookouts and observation platform. One Lookout must be positioned in an aircraft.
(B) Mitigation zone. 1,000 yd (914.4 m) around the intended target.
(C) 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 and marine mammals; if floating vegetation or a marine mammal is observed, Navy personnel must relocate or delay the start of bomb deployment until the mitigation zone is clear of floating vegetation or until the conditions in paragraph (a)(1)(ix)(E) of this section are met for marine mammals.
(D) During activity. During the activity ( e.g., during approach of the target), Navy personnel must observe the mitigation zone for marine mammals and, if a marine mammal is observed, Navy personnel must cease bomb deployment.
(E) 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) 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
( 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.
(2) 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.
(i) North Pacific Right Whale Mitigation Area. Figure 1 to this paragraph (a)(2) shows the location of the mitigation area.
(A) Surface ship hull-mounted MF1 mid-frequency active sonar. From June 1-September 30 within the North Pacific Right Whale Mitigation Area, Navy personnel must not use surface ship hull-mounted MF1 mid-frequency active sonar during training.
(B) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraph (a)(2)(i)(A) of this section, Navy personnel must obtain permission from the designated Command, U.S. Third Fleet Command Authority, prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(ii) Continental Shelf and Slope Mitigation Area. Figure 1 to this paragraph (a)(2) shows the location of the mitigation area.
(A) Explosives. During training, Navy personnel must not detonate explosives below 10,000 ft. altitude (including at the water surface) in the Continental Shelf and Slope Mitigation Area, which extends over the continental shelf and slope out to the 4,000 m depth contour within the TMAA.
(B) National security exception. Should national security require that the Navy cannot comply with the restrictions in paragraph (a)(2)(ii)(A) of this section, Navy personnel must obtain permission from the designated Command, U.S. Third Fleet Command Authority, prior to commencement of the activity. Navy personnel must provide NMFS with advance notification and include information about the event in its annual activity reports to NMFS.
(iii) Pre-event awareness notifications in the Temporary Maritime Activities Area. The Navy must issue pre-event awareness messages to alert vessels and aircraft participating in training activities within the TMAA to the possible presence of concentrations of large whales on the continental shelf and slope. Occurrences of large whales may be higher over the continental shelf and slope relative to other areas of the TMAA. Large whale species in the TMAA include, but are not limited to, fin whale, blue whale, humpback whale, gray whale, North Pacific right whale, sei whale, and sperm whale. To maintain safety of navigation and to avoid interactions with marine mammals, the Navy must instruct personnel to remain vigilant to the presence of large whales that may be vulnerable to vessel strikes or potential impacts from training activities. Additionally, Navy personnel must use the information from the awareness notification messages to assist their visual observation of applicable mitigation zones during training activities and to aid in the implementation of procedural mitigation.
(b) [Reserved]
§ 218.155   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 § 218.150 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 authorized under this subpart.
(b) Monitoring and reporting under the LOA. The Navy must conduct all monitoring and reporting required under the LOA, including abiding by the U.S. Navy's Marine Species Monitoring Program. 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. Navy personnel must 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/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities .
(d) Annual GOA Marine Species Monitoring Report. The Navy must submit an annual report of the GOA Study Area monitoring, which will be included in a Pacific-wide monitoring report and include results specific to the GOA Study Area, describing the implementation and results from the previous calendar year. Data collection methods must be standardized across Pacific Range Complexes including the Mariana Islands Training and Testing (MITT), Hawaii-Southern California Training and Testing (HSTT), Northwest Training and Testing (NWTT), and Gulf of Alaska (GOA) Study Areas to allow for comparison among 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. NMFS will submit comments or questions on the 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 submittal if NMFS does not provide comments on the report. This report will describe progress of knowledge made with respect to intermediate scientific objectives within the GOA Study Area associated with the Integrated Comprehensive Monitoring Program. 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. This will continue to allow the Navy to provide a cohesive monitoring report covering multiple ranges (as per Integrated Comprehensive Monitoring Program goals), rather than entirely separate reports for the GOA, NWTT, HSTT, and MITT Study Areas.
(e) GOA Annual Training Report. Each year in which training activities are conducted in the GOA Study Area, the Navy must submit one preliminary report (Quick Look Report) to NMFS detailing the status of applicable sound sources within 21 days after the completion of the training activities in the GOA Study Area. Each year in which activities are conducted, the Navy must also submit a detailed report (GOA Annual Training Report) to the Director, Office of Protected Resources, NMFS, within 3 months after completion of the training activities. NMFS must submit comments or questions on the report, if any, within one month of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or one month after submittal if NMFS does not provide comments on the report. The annual reports must contain information about the major training exercise (MTE), including the information listed in paragraphs (e)(1) and (2) of this section. The annual report, which is only required during years in which activities are conducted, must also contain cumulative sonar and explosive use quantity from previous years' reports through the current year. Additionally, if there were any changes to the sound source allowance in the reporting year, or cumulatively, the report must include a discussion of why the change was made and include analysis to support how the change did or did not affect the analysis in the GOA Final Supplemental Environmental Impact Statement/Overseas Environmental Impact Statement (FSEIS/OEIS) ( https://www.goaeis.com/ ) and MMPA final rule (88 FR 690, January 4, 2023). The analysis in the detailed report must be based on the accumulation of data from the current year's report and data collected from previous annual reports. The final annual/close-out report at the conclusion of the authorization period (year seven) will also 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. This report must also note any years in which training did not occur. 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 if NMFS does not provide comments. Information included in the annual reports may be used to inform future adaptive management of activities within the GOA Study Area. In addition to the information discussed above, the GOA Annual Training Report must include the following information.
(1) MFAS/HFAS. The Navy must submit the following information for the MTE conducted in the GOA 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 sources used in the exercise.
(E) Number and types of passive acoustic sources used in exercise.
(F) Number and types of vessels, aircraft, etc., participating in exercise.
(G) Total hours of observation by Lookouts.
(H) Total hours of all active sonar source operation.
(I) Total hours of each active sonar source bin.
(J) 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/location of sighting.
(B) Species (if not possible, indication of whale/dolphin/pinniped).
(C) Number of individuals.
(D) Initial detection sensor ( e.g., sonar or Lookout).
(E) Indication of specific type of platform observation 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 to 914.4 m), 1,000 to 2,000 yd (914.4 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 how long the delay was.
(L) If source in use is hull-mounted, true bearing of animal from ship, true direction of ship's travel, and estimation of animal's motion relative to ship (opening, closing, parallel).
(M) Lookouts shall report, in plain language and without trying to categorize in any way, the observed behavior of the animals (such as animal closing to bow ride, paralleling course/speed, floating on surface and not swimming, etc. ) and if any calves 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 shall identify the specific observations that support any conclusions the Navy reaches about the effectiveness of the mitigation.
(2) Summary of sources used. (i) This section shall include the following information summarized from the authorized sound sources used in all training events:
(A) Total hours. Total annual hours or quantity (per the LOA) of each bin of sonar or other non-impulsive source; and
(B) Number of explosives. Total annual number of each type of explosive exercises and total annual expended/detonated rounds (bombs, large-caliber projectiles) for each explosive bin.
(f) Pre-event notification. The Navy must coordinate with NMFS prior to conducting exercises within the GOA Study Area. This may occur as a part of coordination the Navy does with other local stakeholders.
§ 218.156   Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart, the Navy must 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 the expiration date of this subpart.
(c) If an LOA expires prior to the expiration date of this subpart, the Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of § 218.157(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 § 218.157.
(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 and stocks of marine mammals and their habitat; and
(4) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking is consistent with the findings made for the total taking allowable under this subpart.
(g) Notice of issuance or denial of the LOA will be published in the Federal Register within 30 days of a determination.
§ 218.157   Renewals and modifications of Letters of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 218.156 for the activity identified in § 218.150(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 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 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 this subpart 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 the proposed changes to the 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 218.156 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 this subpart or a subsequent LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are more than minor, NMFS will publish a notice of the proposed changes to the 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 218.156, 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.
§ 218.158   [Reserved]
§ 218.230   Specified activity, level of taking, and species/stocks.
Regulations in this subpart apply to the U.S. Navy (Navy) for the taking of marine mammals that occurs incidental to the Navy's SURTASS LFA sonar training and testing activities under authority of the Secretary of the Navy within the central and western North Pacific and eastern Indian Oceans (SURTASS LFA Sonar Study Area) (Table 1 to § 218.230).
Table 1 to § 218.230—Species/Stocks Proposed for Authorization by Level B Harassment for the 7-Year Period of the Proposed Rule by SURTASS LFA Sonar Training and Testing Activities
1 ANT = Antarctic; CNP = Central North Pacific; NP = North Pacific; NIND = Northern Indian; SIND = Southern Indian; IND = Indian; WNP = Western North Pacific; ECS = East China Sea; WP = Western Pacific; SOJ = Sea of Japan; IA = Inshore Archipelago; WAU = Western Australia; YS = Yellow Sea; OE = Offshore Japan; OW = Nearshore Japan; JW = Sea of Japan/Minke; JE = Pacific coast of Japan; SH = Southern Hemisphere; DPS = distinct population segment.
§ 218.231   Effective dates.
Regulations in this subpart are effective from August 13, 2019, through August 12, 2026.
§ 218.232   Permissible methods of taking.
Under a Letter or Letters of Authorization (LOA) issued pursuant to §§ 216.106 of this chapter and 218.237, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.230 by Level B harassment associated with SURTASS LFA sonar training and testing provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
§ 218.233   Prohibitions.
Notwithstanding takings contemplated in § 218.230 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.237, no person in connection with the activities described in § 218.230 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 218.237;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than Level B harassment;
(d) Take any marine mammal specified in the LOA if NMFS makes a determination that such taking is having, or may have, more than a negligible impact on the species or stocks concerned; or
(e) Take a marine mammal specified in the LOA if NMFS determines such taking is having, or may have, an unmitigable adverse impact on availability of the species or stock for taking for subsistence uses.
§ 218.234   Mitigation.
When conducting activities identified in § 218.230, the mitigation measures described in this section and in any LOA issued under §§ 216.106 of this chapter and 218.237 must be implemented.
(a) Personnel training—lookouts. The Navy will utilize one or more trained marine biologists qualified in conducting at-sea marine mammal visual monitoring to conduct at-sea marine mammal visual monitoring training and qualify designated ship personnel to conduct at-sea visual monitoring. Training will ensure quick and effective communication within the command structure in order to facilitate implementation of protective measures if they detect marine mammals and may be accomplished either in-person, or via video training.
(b) General operating procedures. (1) Prior to SURTASS LFA sonar activities, the Navy will promulgate executive guidance for the administration, execution, and compliance with the environmental regulations under these regulations and LOA.
(2) The Navy must not transmit the SURTASS LFA sonar signal at a frequency greater than 500 Hz.
(c) 2,000-yard LFA sonar mitigation zone; suspension and delay. If a marine mammal is detected, through monitoring required under § 218.235, within or about to enter within 2,000 yards of the SURTASS LFA source ( i.e., the LFA mitigation zone), the Navy must immediately delay or suspend SURTASS LFA sonar transmissions.
(d) Resumption of SURTASS LFA sonar transmissions. (1) The Holder of a LOA may not resume SURTASS LFA sonar transmissions earlier than 15 minutes after:
(i) All marine mammals have left the area of the 2,000-yard LFA sonar mitigation zone; and
(ii) There is no further detection of any marine mammal within the 2,000-yard LFA sonar mitigation zone as determined by the visual, passive acoustic, and active acoustic high frequency monitoring described in § 218.235.
(2) [Reserved]
(e) Ramp-up procedures for the high-frequency marine mammal monitoring (HF/M3) sonar required under § 218.235. (1) The Navy must ramp up the HF/M3 sonar power level beginning at a maximum source sound pressure level of 180 dB: re 1 µPa at 1 meter in 10-dB increments to operating levels over a period of no less than five minutes:
(i) At least 30 minutes prior to any SURTASS LFA sonar transmissions; and
(ii) Anytime after the HF/M3 source has been powered down for more than two minutes.
(2) The Navy must not increase the HF/M3 sound pressure level once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected.
(f) Geographic restrictions on the SURTASS LFA sonar sound field. (1) LFA sonar training and testing activities must be conducted such that:
(i) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 µPa rms within 22 km (12 nmi) from any emergent land, including offshore islands;
(ii) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 µPa rms at a distance of 1 km (0.5 nmi) seaward of the outer perimeter of any Offshore Biologically Important Area (OBIA) designated in the Study Area for SURTASS LFA sonar in paragraph (f)(2) of this section, or subsequently identified through the Adaptive Management process specified in § 218.241, during the period specified. The boundaries and periods of such OBIAs will be kept on file in NMFS' Office of Protected Resources and on its website at https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-military-readiness-activities.
(iii) No more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be conducted within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information ( e.g., sonar hours) in its annual activity reports submitted to NMFS.
(iv) No activities with the SURTASS LFA system will occur within territorial seas of foreign nations, which are areas from 0 up to 12 nmi from shore, depending on the distance that individual nations claim; and
(v) No activities with the SURTASS LFA sonar system will occur in the waters of Penguin Bank, Hawaii (defined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 µPa rms.
(2) Offshore Biologically Important Areas (OBIAs) for marine mammals (with specified periods) for SURTASS LFA sonar training and testing activities include the following (Table 1 to paragraph (f)(2)):
Table 1 to Paragraph ( f )(2)—Offshore Biologically Important Areas (OBIAs)
(g) Minimization of additional harm to live-stranded (or milling) mammals. The Navy must consult the Notification and Reporting Plan, which sets out the requirements for when live stranded marine mammals are reported in the Study Area. The Stranding and Notification Plan is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-operations-surveillance-towed-array-sensor-system-0.
§ 218.235   Requirements for monitoring.
(a) The Navy must:
(1) Conduct visual monitoring from the ship's bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset). During training and testing activities that employ SURTASS LFA sonar in the active mode, the SURTASS vessels must have Lookouts to maintain a topside watch with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to confirm the sighting and potentially identify the marine mammal species.
(2) Use the passive SURTASS sonar component to detect vocalizing marine mammals; and
(3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the LFA mitigation zone, subject to the ramp-up requirements in § 216.234(e) of this chapter.
(b) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar training and testing transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar training and testing transmission, or, if marine mammals are exhibiting unusual changes in behavioral patterns, until behavior patterns return to normal or conditions prevent continued observations.
(c) The Navy must designate qualified on-site individuals to conduct the mitigation, monitoring, and reporting activities specified in these regulations and LOA issued under §§ 216.106 of this chapter and 218.237.
(d) The Navy must continue to assess data from the Marine Mammal Monitoring Program and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.
(e) The Navy must collect ambient noise data and will explore the feasibility of declassifying and archiving the ambient noise data for incorporation into appropriate ocean noise budget efforts.
(f) The Navy must conduct all monitoring required under LOAs.
§ 218.236   Requirements for reporting.
(a) The Navy must submit classified and unclassified annual training and testing activity reports to the Director, Office of Protected Resources, NMFS, no later than 90 days after the end of each year covered by the LOA beginning on the date of effectiveness of a LOA. Each annual training and testing activity report will include a summary of all active-mode training and testing activities completed during that year. At a minimum, each classified training and testing activity report must contain the following information:
(1) Dates, times, and location of each vessel during each training and testing activity;
(2) Information on sonar transmissions during each training and testing activity;
(3) Results of the marine mammal monitoring program specified in the LOA; and
(4) Estimates of the percentages of marine mammal species and stocks affected (both for the year and cumulatively for each successive year) covered by the LOA.
(b) The seventh annual report must be prepared as a final comprehensive report, which will include information for the final year as well as the prior six years of activities under the rule. This final comprehensive report must also contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar, and be submitted to the Director, Office of Protected Resources, NMFS as described in this paragraph (b).
(c) The Navy will continue to assess the data collected by its undersea arrays and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.
(d) The Navy must consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements for when dead, injured, or live stranded marine mammals are reported in the Study Area. The Stranding and Notification Plan is available at: https://www.fisheries.noaa.gov/action/incidental-take-authorization-us-navy-operations-surveillance-towed-array-sensor-system-0.
§ 218.237   Letter of Authorization.
(a) To incidentally take marine mammals pursuant to these regulations, Navy must apply for and obtain a Letter of Authorization (LOA).
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA (excluding changes made pursuant to the adaptive management provision of § 218.239), the Navy must apply for and obtain a modification of the LOA as described in § 218.238.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses ( i.e., mitigation); and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the Federal Register within thirty days of a determination.
§ 218.238   Renewals and modifications of a Letter of Authorization.
(a) An LOA issued under §§ 216.106 of this chapter and 218.237 for the activity identified in § 218.230 may be renewed or modified upon request by the applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) were implemented.
(b) For LOA modification or renewal requests by the Navy that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that do not result in more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish notification of a planned LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.
(c) An LOA issued under §§ 216.106 of this chapter and 218.237 may be modified by NMFS under the following circumstances:
(1) Adaptive management. After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice of planned LOA in the Federal Register and solicit public comment.
(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.237, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.