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Title 50Chapter IISubchapter CPart 218 → Subpart O


Title 50: Wildlife and Fisheries
PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS


Subpart O—Taking and Importing Marine Mammals; U.S. Navy's Northwest Training and Testing (NWTT) Study Area


Contents
§218.140   Specified activity and specified geographical region.
§218.141   Applicability dates.
§218.142   Permissible methods of taking.
§218.143   Prohibitions.
§218.144   Mitigation.
§218.145   Requirements for monitoring and reporting.
§218.146   Applications for Letters of Authorization.
§218.147   Letters of Authorization.
§218.148   Renewals and Modifications of Letters of Authorization and Adaptive Management.

Source: 80 FR 73622, Nov. 24, 2015, unless otherwise noted.

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§218.140   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the U.S. Navy for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.

(b) The taking of marine mammals by the Navy is only authorized if it occurs within the NWTT Study Area, which is composed of established maritime operating and warning areas in the eastern North Pacific Ocean region, including areas of the Strait of Juan de Fuca, Puget Sound, and Western Behm Canal in southeastern Alaska. The Study Area includes air and water space within and outside Washington state waters, and outside state waters of Oregon and Northern California. The Study Area includes four existing range complexes and facilities: The Northwest Training Range Complex (NWTRC), the Keyport Range Complex, Carr Inlet Operations Area, and SEAFAC. In addition to these range complexes, the Study Area also includes Navy pierside locations where sonar maintenance and testing occurs as part of overhaul, modernization, maintenance and repair activities at NAVBASE Kitsap, Bremerton; NAVBASE Kitsap, Bangor; and Naval Station Everett.

(c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the following activities within the designated amounts of use:

(1) Sonar and other Active Sources Used During Training:

(i) Mid-frequency (MF) Source Classes:

(A) MF1—an average of 166 hours per year.

(B) MF3—an average of 70 hours per year.

(C) MF4—an average of 4 hours per year.

(D) MF5—an average of 896 items per year.

(E) MF11—an average of 16 hours per year.

(ii) High-frequency (HF) Source Classes:

(A) HF1—an average of 48 hours per year.

(B) HF4—an average of 384 hours per year.

(C) HF6—an average of 192 hours per year

(iii) Anti-Submarine Warfare (ASW) Source Classes:

(A) ASW2—an average of 720 items per year per year.

(B) ASW3—an average of 78 hours per year.

(2) Sonar and other Active Sources Used During Testing:

(i) Low-frequency (LF) Source Classes:

(A) LF4—an average of 110 hours per year.

(B) LF5—an average of 71 hours per year.

(ii) Mid-frequency (MF):

(A) MF1—an average of 32 hours per year

(B) MF3—an average of 145 hours per year.

(C) MF4—an average of 10 hours per year.

(D) MF5—an average of 273 items per year.

(E) MF6—an average of 12 items per year.

(F) MF8—an average of 40 hours per year.

(G) MF9—an average of 1,183 hours per year.

(H) MF10—an average of 1,156 hours per year.

(I) MF11—an average of 34 hours per year.

(J) MF12—an average of 24 hours per year.

(iii) High-frequency (HF) and Very High-frequency (VHF):

(A) HF1—an average of 161 hours per year.

(B) HF3—an average of 145 hours per year.

(C) HF5—an average of 360 hours per year.

(D) HF6—an average of 2,099 hours per year.

(iv) VHF:

(A) VHF2—an average of 35 hours per year.

(B) [Reserved]

(v) ASW:

(A) ASW1—an average of 16 hours per year.

(B) ASW2—an average of 64 hours per year.

(C) ASW2—an average of 170 items per year.

(D) ASW3—an average of 444 hours per year.

(E) ASW4—an average of 1,182 items per year.

(vi) Acoustic Modems (M):

(A) M3—an average of 1,519 hours per year.

(B) [Reserved]

(vii) Torpedoes (TORP):

(A) TORP1—an average of 315 items per year.

(B) TORP2—an average of 299 items per year.

(viii) Swimmer Detection Sonar (SD):

(A) SD1—an average of 757 hours per year.

(B) [Reserved]

(ix) Synthetic Aperture Sonar (SAS):

(A) SAS2—an average of 798 hours per year.

(B) [Reserved]

(3) Impulsive Source Detonations During Training:

(i) Explosive Classes:

(A) E1 (0.1 to 0.25 pound [lb] NEW)—an average of 48 detonations per year.

(B) E3 (>0.5 to 2.5 lb NEW)—an average of 6 detonations per year.

(C) E5 (>5 to 10 lb NEW)—an average of 80 detonations per year.

(D) E10 (>250 to 500 lb NEW)—an average of 4 detonations per year.

(E) E12 (>650 to 1,000 lb NEW)—an average of 10 detonations per year.

(ii) [Reserved]

(4) Impulsive Source Detonations During Testing:

(i) Explosive Classes:

(A) E3 (>0.5 to 2.5 lb NEW)—an average of 72 detonations per year.

(B) E4 (>2.5 to 5 lb NEW)—an average of 140 detonations (70 sonobuoys) per year.

(C) E8 (>60 to 100 lb NEW)—an average of 3 detonations per year.

(D) E11 (>500 to 650 lb NEW)—an average of 3 detonations per year.

(ii) [Reserved]

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§218.141   Applicability dates.

Regulations in this subpart are applicable November 9, 2015, through November 8, 2020.

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§218.142   Permissible methods of taking.

(a) Under Letters of Authorization (LOAs) issued pursuant to §218.147, the Holder of, and those operating under, the LOA may incidentally, but not intentionally, take marine mammals within the area described in §218.140, provided the activity is in compliance with all terms, conditions, and requirements of these regulations and the appropriate LOA.

(b) The activities identified in §218.140(c) must be conducted in a manner that minimizes, to the greatest extent practicable, any adverse impacts on marine mammals and their habitat.

(c) The incidental take of marine mammals under the activities identified in §218.140(c) is limited to the following species, by the identified method of take and the indicated number of times:

(1) Level B Harassment for all Training Activities:

(i) Mysticetes:

(A) Blue whale (Balaenoptera musculus), Eastern North Pacific—25 (an average of 5 per year).

(B) Fin whale (Balaenoptera physalus), California, Oregon, and Washington (CA/OR/WA)—125 (an average of 25 per year).

(C) Gray whale (Eschrichtius robustus), Eastern North Pacific—30 (an average of 6 per year).

(D) Humpback whale (Megaptera novaeangliae), CA/OR/WA—60 (an average of 12 per year).

(E) Minke whale (Balaenoptera acutorostrata), CA/OR/WA—90 (an average of 18 per year).

(ii) Odontocetes:

(A) Baird's beaked whale (Berardius bairdii), CA/OR/WA—2,955 (an average of 591 per year).

(B) Mesoplodont beaked whale (Mesoplodon spp.), CA/OR/WA—7,085 (an average of 1,417 per year).

(C) Cuvier's beaked whale (Ziphius cavirostris), CA/OR/WA—1,765 (an average of 353 per year).

(D) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA—18,178 (an average of 3,730 per year).

(E) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast—175,030 (an average of 35,006 per year).

(F) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR—262,545 (an average of 52,509 per year).

(G) Harbor porpoise (Phocoena phocoena), WA Inland Waters—4,409 (an average of 1,417 per year).

(H) Killer whale (Orcinus orca), West Coast Transient—39 (an average of 9 per year).

(I) Killer whale (Orcinus orca), Eastern North Pacific Offshore—65 (an average of 13 per year).

(J) Killer whale (Orcinus orca), Eastern North Pacific Southern Resident—6 (an average of 2 per year).

(K) Kogia spp., CA/OR/WA—365 (an average of 73 per year).

(L) Northern right whale dolphin (Lissodelphis borealis), CA/OR/WA—6,660 (an average of 1,332 per year).

(M) Pacific white-sided dolphin (Lagenorhynchus obliquidens), CA/OR/WA—17,408 (an average of 3,482 per year).

(N) Risso's dolphin (Grampus griseus), CA/OR/WA—3,285 (an average of 657 per year).

(O) Short-beaked common dolphin (Delphinus delphis), CA/OR/WA—3,670 (an average of 734 per year).

(P) Sperm whale (Physeter macrocephalus), CA/OR/WA—405 (an average of 81 per year).

(Q) Striped dolphin (Stenella coerulealba), CA/OR/WA—110 (an average of 22 per year).

(iii) Pinnipeds:

(A) California sea lion (Zalophus californianus), U.S.—4,038 (an average of 814 per year).

(B) Steller sea lion (Eumetopias jubatus), Eastern U.S.—1,986 (an average of 404 per year).

(C) Guadalupe fur seal (Arctocephalus townsendi), Mexico—35 (an average of 7 per year).

(D) Harbor seal (Phoca vitulina), WA Northern Inland Waters—1,855 (an average of 427 per year).

(E) Harbor seal (Phoca vitulina), Southern Puget Sound—252 (an average of 58 per year).

(F) Harbor seal (Phoca vitulina), Hood Canal—2,054 (an average of 452 per year).

(G) Northern elephant seal (Mirounga angustirostris), CA Breeding—6,353 (an average of 1,271 per year).

(H) Northern fur seal (Callorhinus ursinus), Eastern Pacific—12,475 (an average of 2,495 per year).

(I) Northern fur seal (Callorhinus ursinus), California—185 (an average of 37 per year).

(2) Level A Harassment for all Training Activities:

(i) Mysticetes:

(A)-(B) [Reserved]

(ii) Odontocetes:

(A) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA—20 (an average of 4 per year).

(B) Harbor porpoise (Phocoena phocoena), WA Inland Waters—5 (an average of 1 per year).

(iii) Pinnipeds:

(A) Harbor seal (Phoca vitulina), WA Northern Inland Waters—20 (an average of 4 per year).

(B) Harbor seal (Phoca vitulina), Hood Canal—10 (an average of 2 per year).

(C) [Reserved]

(3) Level B Harassment for all Testing Activities:

(i) Mysticetes:

(A) Blue whale (Balaenoptera musculus), Eastern North Pacific—30 (an average of 6 per year).

(B) Fin whale (Balaenoptera physalus), CA/OR/WA—170 (an average of 34 per year).

(C) Fin whale (Balaenoptera physalus), Northeast Pacific—10 (an average of 2 per year).

(D) Gray whale (Eschrichtius robustus), Eastern North Pacific—60 (an average of 12 per year).

(E) Humpback whale (Megaptera novaeangliae), Central North Pacific—5 (an average of 1 per year).

(F) Humpback whale (Megaptera novaeangliae), CA/OR/WA—220 (an average of 44 per year).

(G) Minke whale (Balaenoptera acutorostrata), CA/OR/WA—90 (an average of 18 per year).

(H) Sei whale (Balaenoptera borealis), Eastern North Pacific—10 (an average of 2 per year).

(ii) Odontocetes:

(A) Baird's beaked whale (Berardius bairdii), Alaska—125 (an average of 25 per year).

(B) Baird's beaked whale (Berardius bairdii), CA/OR/WA—745 (an average of 149 per year).

(C) Mesoplodont beaked whale (Mesoplodon spp.), CA/OR/WA—1,845 (an average of 369 per year).

(D) Cuvier's beaked whale (Ziphius cavirostris), Alaska—75 (an average of 15 per year).

(E) Cuvier's beaked whale (Ziphius cavirostris), CA/OR/WA—455 (an average of 91 per year).

(F) Dall's porpoise (Phocoenoidea dalli), Alaska—6,000 (an average of 1,200 per year).

(G) Dall's porpoise (Phocoenoidea dalli), CA/OR/WA—50,785 (an average of 10,157 per year).

(H) Harbor porpoise (Phocoena phocoena), Southeast Alaska—4,630 (an average of 926 per year).

(I) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast—86,060 (an average of 17,212 per year).

(J) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR—129,095 (an average of 25,819 per year).

(K) Harbor porpoise (Phocoena phocoena), WA Inland Waters—27,045 (an average of 5,409 per year).

(L) Killer whale (Orcinus orca), Alaska Resident—10 (an average of 2 per year).

(M) Killer whale (Orcinus orca), West Coast Transient—1,035 (an average of 207 per year).

(N) Killer whale (Orcinus orca), Eastern North Pacific Offshore—110 (an average of 22 per year).

(O) Kogia spp., CA/OR/WA—530 (an average of 106 per year).

(P) Northern right whale dolphin (Lissodelphis borealis), CA/OR/WA—10,190 (an average of 2,038 per year).

(Q) Pacific white-sided dolphin (Lagenorhynchus obliquidens), North Pacific—15 (an average of 3 per year).

(R) Pacific white-sided dolphin (Lagenorhynchus obliquidens), CA/OR/WA—24,345 (an average of 4,869 per year).

(S) Risso's dolphin (Grampus griseus), CA/OR/WA—5,770 (an average of 1,154 per year).

(T) Short-beaked common dolphin (Delphinus delphis), CA/OR/WA—8,140 (an average of 1,628 per year).

(U) Sperm whale (Physeter macrocephalus), CA/OR/WA—390 (an average of 78 per year).

(V) Striped dolphin (Stenella coerulealba), CA/OR/WA—70 (an average of 14 per year).

(iii) Pinnipeds:

(A) California sea lion (Zalophus californianus), U.S.—10,730 (an average of 2,146 per year).

(B) Steller sea lion (Eumetopias jubatus), Eastern U.S.—2,605 (an average of 521 per year).

(C) Guadalupe fur seal (Arctocephalus townsendi), Mexico—15 (an average of 3 per year).

(D) Harbor seal (Phoca vitulina), Southeast Alaska (Clarence Sound)—110 (an average of 22 per year).

(E) Harbor seal (Phoca vitulina), OR/WA Coast—8,275 (an average of 1,655 per year).

(F) Harbor seal (Phoca vitulina), WA Northern Inland Waters—9,115 (an average of 1,823 per year).

(G) Harbor seal (Phoca vitulina), Southern Puget Sound—980 (an average of 196 per year).

(H) Harbor seal (Phoca vitulina), Hood Canal—296,085 (an average of 59,217 per year).

(I) Northern elephant seal (Mirounga angustirostris), CA Breeding—6,625 (an average of 1,325 per year).

(J) Northern fur seal (Callorhinus ursinus), Eastern Pacific—9,150 (an average of 1,830 per year).

(K) Northern fur seal (Callorhinus ursinus), California—135 (an average of 27 per year).

(4) Level A Harassment for all Testing Activities:

(i) Mysticetes:

(A) Gray whale (Eschrichtius robustus), Eastern North Pacific—5 (an average of 1 per year).

(B) [Reserved]

(ii) Odontocetes:

(A) Kogia spp., CA/OR/WA—5 (an average of 1 per year).

(B) Dall' porpoise (Phocoenoidea dalli), CA/OR/WA—215 (an average of 43 per year).

(C) Harbor porpoise (Phocoena phocoena), Northern OR/WA Coast—75 (an average of 15 per year).

(D) Harbor porpoise (Phocoena phocoena), Northern CA/Southern OR—115 (an average of 23 per year).

(E) Harbor porpoise (Phocoena phocoena), WA Inland Waters—30 (an average of 6 per year).

(iii) Pinnipeds:

(A) Harbor seal (Phoca vitulina), OR/WA Coast—20 (an average of 4 per year).

(B) Harbor seal (Phoca vitulina), WA Northern Inland Waters—110 (an average of 22 per year).

(C) Harbor seal (Phoca vitulina), Southern Puget Sound—5 (an average of 1 per year).

(D) Harbor seal (Phoca vitulina), Hood Canal—335 (an average of 67 per year).

(E) Northern elephant seal (Mirounga angustirostris), CA Breeding—10 (an average of 2 per year).

(F) [Reserved]

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§218.143   Prohibitions.

Notwithstanding takings contemplated in §218.142 and authorized by an LOA issued under §§216.106 and 218.147 of this chapter, no person in connection with the activities described in §218.140 may:

(a) Take any marine mammal not specified in §218.142(c);

(b) Take any marine mammal specified in §218.142(c) other than by incidental take as specified in §218.142(c);

(c) Take a marine mammal specified in §218.142(c) if such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

(d) Violate, or fail to comply with, the terms, conditions, and requirements of these regulations or an LOA issued under §§216.106 and 218.147.

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§218.144   Mitigation.

(a) When conducting training and testing activities, as identified in §218.140, the mitigation measures contained in the LOA issued under §§216.106 and 218.147 of this chapter must be implemented. These mitigation measures include, but are not limited to:

(1) Lookouts—The following are protective measures concerning the use of Lookouts.

(i) Lookouts positioned on surface ships will be dedicated solely to diligent observation of the air and surface of the water. Their observation objectives will include, but are not limited to, detecting the presence of biological resources and recreational or fishing boats, observing mitigation zones, and monitoring for vessel and personnel safety concerns.

(ii) Lookouts positioned ashore, in aircraft or on boats will, to the maximum extent practicable and consistent with aircraft and boat safety and training and testing requirements, comply with the observation objectives described in paragraph (a)(1)(i) of this section.

(iii) Lookout Measures for Non-Impulsive Sound:

(A) With the exception of vessels less than 65 ft (20 m) in length or minimally manned vessels, ships using low-frequency or hull-mounted mid-frequency active sonar sources associated with anti-submarine warfare and mine warfare activities at sea will have two Lookouts at the forward position of the vessel. For the purposes of this rule, low-frequency active sonar does not include surface towed array surveillance system low-frequency active sonar.

(B) While using low-frequency or hull-mounted mid-frequency active sonar sources associated with anti-submarine warfare and mine warfare activities at sea, vessels less than 65 ft (20 m) in length or minimally manned vessels will have one Lookout at the forward position of the vessel due to space and manning restrictions.

(C) Ships conducting active sonar activities while moored or at anchor (including pierside or shore-based testing or maintenance) will maintain one Lookout.

(D) Minimally manned vessels conducting hull-mounted mid-frequency testing will employ one Lookout.

(E) Ships, small boats, range craft, or aircraft conducting non-hull-mounted mid-frequency active sonar, such as helicopter dipping sonar systems, will maintain one Lookout.

(F) Surface ships or aircraft conducting high-frequency or non-hull-mounted mid-frequency active sonar activities associated with anti-submarine warfare and mine warfare activities at sea will have one Lookout.

(iv) Lookout measures for impulsive sound (e.g., explosives):

(A) Aircraft conducting improved extended echo ranging sonobuoy activities will have one Lookout.

(B) Aircraft conducting explosive sonobuoy activities using >0.5 to 2.5-lb net explosive weight (NEW) will have one Lookout.

(C) General mine countermeasure and neutralization activities involving positive control diver placed charges using >0.5 to 2.5 lb NEW will have a total of two Lookouts (one Lookout positioned in each of the two support vessels). All divers placing the charges on mines will support the Lookouts while performing their regular duties. The divers and Lookouts will report all marine mammal sightings to their dive support vessel.

(D) Surface vessels or aircraft conducting small-, medium-, and large-caliber gunnery exercises will have one Lookout. Towing vessels, if applicable, will also maintain one Lookout.

(E) Aircraft conducting missile exercises against a surface target will have one Lookout.

(F) Aircraft conducting explosive bombing exercises will have one Lookout and any surface vessels involved will have trained Lookouts.

(G) During explosive torpedo testing from aircraft one Lookout will be used and positioned in an aircraft. During explosive torpedo testing from a surface ship the Lookout procedures implemented for hull-mounted mid-frequency active sonar activities will be used.

(H) To mitigate effects from weapon firing noise, ships conducting explosive and non-explosive large-caliber gunnery exercises will have one Lookout. This may be the same Lookout used for small, medium, and large-caliber gunnery exercises using a surface target when that activity is conducted from a ship against a surface target.

(v) Lookout measures for physical strike and disturbance:

(A) While underway, surface ships and range craft will have at least one Lookout.

(B) During activities using towed in-water devices towed from a manned platform, one Lookout will be used. During activities in which in-water devices are towed by unmanned platforms, a manned escort vessel will be included and one Lookout will be employed.

(C) Activities involving non-explosive practice munitions (e.g., small-, medium-, and large-caliber gunnery exercises) using a surface target will have one Lookout.

(D) During non-explosive bombing exercises one Lookout will be positioned in an aircraft and trained Lookouts will be positioned in any surface vessels involved.

(2) Mitigation zones—The following are protective measures concerning the implementation of mitigation zones.

(i) Mitigation zones will be measured as the radius from a source and represent a distance to be monitored.

(ii) Visual detections of marine mammals (or sea turtles) within a mitigation zone will be communicated immediately to a watch station for information dissemination and appropriate action.

(iii) Mitigation Zones for Non-Impulsive Sound:

(A) The Navy shall ensure that hull-mounted mid-frequency active sonar transmission levels are limited to at least 6 dB below normal operating levels if any detected marine mammals (or sea turtles) are within 1,000 yd. (914 m) of the sonar dome (the bow).

(B) The Navy shall ensure that hull-mounted mid-frequency active sonar transmissions are limited to at least 10 dB below the equipment's normal operating level if any detected marine mammals (or sea turtles) are within 500 yd. (457 m) of the sonar dome.

(C) The Navy shall ensure that hull-mounted mid-frequency active sonar transmissions are ceased if any detected cetaceans (or sea turtles) are within 200 yd. (183 m) and pinnipeds are within 100 yd. (91 m) of the sonar dome. Transmissions will not resume until the marine mammal has been observed exiting the mitigation zone, is thought to have exited the mitigation zone based on its course and speed, has not been detected for 30 minutes, the vessel has transited more than 2,000 yd. beyond the location of the last detection, or the Lookout concludes that dolphins are deliberately closing in on the ship to ride the ship's bow wave (and there are no other marine mammal sightings within the mitigation zone). Active transmission may resume when dolphins are bow riding because they are out of the main transmission axis of the active sonar while in the shallow-wave area of the ship bow. The pinniped mitigation zone does not apply to pierside sonar in the vicinity of pinnipeds hauled out on or in the water near man-made structures and vessels.

(D) The Navy shall ensure that low-frequency active sonar transmission levels are ceased if any detected cetaceans (or sea turtles) are within 200 yd. (183 m) and pinnipeds are within 100 yd. (91 m) of the source. Transmissions will not resume until the marine mammal has been observed exiting the mitigation zone, is thought to have exited the mitigation zone based on its course and speed, has not been detected for 30 minutes, or the vessel has transited more than 2,000 yd. beyond the location of the last detection. The pinniped mitigation zone does not apply for pierside sonar in the vicinity of pinnipeds hauled out on or in the water near man-made structures and vessels.

(E) For training, the Navy shall ensure that high-frequency and non-hull-mounted mid-frequency active sonar transmission levels are ceased if any detected marine mammals are within 200 yd. (183 m) of the source. For testing, the Navy shall ensure that high-frequency and non-hull-mounted mid-frequency active sonar transmission levels are ceased if any detected cetaceans are within 200 yd. (183 m) and pinnipeds are within 100 yd. (91 m) of the source. Transmissions will not resume until the marine mammal has been observed exiting the mitigation zone, is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 10 minutes for an aircraft-deployed source, the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a vessel-deployed source, the vessel or aircraft has repositioned itself more than 400 yd. (370 m) away from the location of the last sighting, or the vessel concludes that dolphins are deliberately closing in to ride the vessel's bow wave (and there are no other marine mammal sightings within the mitigation zone). The pinniped mitigation zone does not apply for pierside or shore-based testing in the vicinity of pinnipeds hauled out on or in the water near man-made structures and vessels.

(iv) Mitigation Zones and Procedures for Explosive and Impulsive Sound:

(A) For activities using IEER sonobuoys, mitigation will include pre-exercise aerial observation and passive acoustic monitoring, which will begin 30 minutes before the first source/receiver pair detonation and continue throughout the duration of the exercise. IEER sonobuoys will not be deployed if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone around the intended deployment location. Explosive detonations will cease if a marine mammal, sea turtle, or concentrations of floating vegetation are sighted within a 600-yd. (549 m) mitigation zone. Detonations will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 30 minutes.

(B) A mitigation zone with a radius of 350 yd. (320 m) shall be established for explosive signal underwater sonobuoys using >0.5 to 2.5 lb net explosive weight. Mitigation will include pre-exercise aerial monitoring of the mitigation zone during deployment. Explosive SUS buoys will not be deployed if concentrations of floating vegetation (kelp paddies) are observed within the mitigation zone around the intended deployment location. A SUS detonation will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Detonations will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes.

(C) A mitigation zone with a radius of 400 yd. (366 m) shall be established for mine countermeasures and neutralization activities using positive control firing devices. For Demolition and Mine Countermeasures Operations, pre-exercise surveys shall be conducted within 30 minutes prior to the commencement of the scheduled explosive event. The survey may be conducted from the surface, by divers, or from the air, and personnel shall be alert to the presence of any marine mammal or sea turtle. Should a marine mammal or sea turtle be present within the survey area, the explosive event shall not be started until the animal voluntarily leaves the area. The Navy will ensure the area is clear of marine mammals for a full 30 minutes prior to initiating the explosive event. Explosive detonations will cease if a marine mammal is sighted in the water portion of the mitigation zone (i.e., not on shore). Detonations will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 30 minutes.

(D) A mitigation zone with a radius of 200 yd. (183 m) shall be established for small- and medium-caliber gunnery exercises with a surface target. Vessels will observe the mitigation zone from the firing position. When aircraft are firing, the aircrew will maintain visual watch of the mitigation zone during the activity. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed within the mitigation zone. Firing will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 10 minutes for a firing aircraft, the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a firing ship, or the intended target location has been repositioned more than 400 yd. (370 m) away from the location of the last sighting.

(E) A mitigation zone with a radius of 600 yd. (549 m) shall be established for large-caliber gunnery exercises with a surface target. Ships will observe the mitigation zone from the firing position. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 30 minutes.

(F) A mitigation zone with a radius of 2,000 yd. (1.8 km) shall be established for missile exercises up to 500 lb NEW using a surface target. When aircraft are involved in the missile firing, mitigation will include visual observation by the aircrew prior to commencement of the activity within a mitigation zone of 2,000 yd. (1.8 km) around the intended impact location. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will not commence or will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes or 30 minutes (depending on aircraft type).

(G) A mitigation zone with a radius of 2,500 yd. (2.3 km) for explosive bombs and a mitigation zone of 1,000 yd (914 m) for non-explosive bombs around the intended impact location shall be established for bombing exercises. Aircraft shall visually survey the target and buffer zone for marine mammals prior to and during the exercise. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing will not commence or will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Bombing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes.

(H) A mitigation zone with a radius of 2,100 yd. (1.9 km) shall be established for torpedo (explosive) testing. Mitigation will include visual observation by aircraft immediately before, during, and after the event of the mitigation zone. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are sighted within the mitigation zone. Firing will not commence or will cease if a marine mammal, sea turtle, or aggregation of jellyfish is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes or 30 minutes (depending on aircraft type). In addition to visual observation, passive acoustic monitoring shall be conducted by Navy assets, such as passive ship sonar systems or sonobuoys already participating in the activity. These assets would only detect vocalizing marine mammals within the frequency band monitored by Navy personnel. Passive acoustic detections would not provide range or bearing to detected animals, and therefore cannot provide locations of these animals. Passive acoustic detections shall be reported to the Lookout posted in the aircraft in order to increase vigilance of the visual surveillance, and to the person in control of the activity for their consideration in determining when the mitigation zone is determined free of visible marine mammals.

(I) A mitigation zone with a radius of 70 yd. (46 m) within 30 degrees on either side of the gun target line on the firing side shall be established for weapons firing noise during large-caliber gunnery exercises. Mitigation shall include visual observation immediately before and during the exercise. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal or sea turtle is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 30 minutes, or the vessel has repositioned itself more than 140 yd. (128 m) away from the location of the last sighting.

(v) Mitigation Zones for Vessels and In-Water Devices:

(A) For all training activities and for testing activities involving surface ships, vessels shall avoid approaching marine mammals head on and shall maneuver to keep at least 500 yd. (457 m) away from observed whales and 200 yd (183 m) away from all other marine mammals (except bow riding dolphins, and pinnipeds hauled out on man-made navigational and port structures and vessels) during vessel movements. These requirements shall not apply if a vessel's safety is threatened and to the extent that vessels are restricted in their ability to maneuver. Restricted maneuverability includes, but is not limited to, situations when vessels are engaged in dredging, submerged activities, launching and recovering aircraft or landing craft, minesweeping activities, replenishment while underway and towing activities that severely restrict a vessel's ability to deviate course.

(B) For testing activities not involving surface ships (e.g. range craft) vessels shall maneuver to keep at least 100 yd. (91 m) away from marine mammals (except bow-riding dolphins, pinnipeds hauled out on man-made navigational and port structures and vessels, and pinnipeds during test body retrieval) during vessel movements. This requirement shall not apply if a vessel's safety is threatened and to the extent that vessels are restricted in their ability to maneuver. Restricted maneuverability includes, but is not limited to, situations when vessels are engaged in dredging, submerged activities, launching and recovering aircraft or landing craft, minesweeping activities, replenishment while underway and towing activities that severely restrict a vessel's ability to deviate course.

(C) The Navy shall ensure that towed in-water devices being towed from manned platforms avoid coming within a mitigation zone of 250 yd. (230 m) for all training events and testing activities involving surface ships, and a mitigation zone of 100 yd (91 m) for testing activities not involving surface ships (e.g. range craft) around any observed marine mammal, providing it is safe to do so.

(vi) Mitigation zones for non-explosive practice munitions:

(A) A mitigation zone of 200 yd. (183 m) shall be established for small-, medium, and large-caliber gunnery exercises using a surface target. Mitigation will include visual observation from a vessel or aircraft immediately before and during the exercise within the mitigation zone of the intended impact location. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing will cease if a marine mammal is sighted within the mitigation zone. Firing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, the mitigation zone has been clear from any additional sightings for a period of 10 minutes for a firing aircraft, the mitigation zone has been clear from any additional sightings for a period of 30 minutes for a firing ship, or the intended target location has been repositioned more than 400 yd. (370 m) away from the location of the last sighting.

(B) A mitigation zone of 1,000 yd. (914 m) shall be established for non-explosive bombing exercises. Mitigation shall include visual observation from the aircraft immediately before the exercise and during target approach within the mitigation zone around the intended impact location. The exercise will not commence if concentrations of floating vegetation (kelp paddies) are observed within the mitigation zone. Bombing will not commence or will cease if a marine mammal is sighted within the mitigation zone. Bombing will recommence if the animal is observed exiting the mitigation zone, the animal is thought to have exited the mitigation zone based on its course and speed, or the mitigation zone has been clear from any additional sightings for a period of 10 minutes.

(3) NWTT-Specific Mitigation—The following are additional measures the Navy shall comply with when conducting training or testing activities in the NWTT Study Area:

(i) Maritime Homeland Defense/Security Mine Countermeasure Integrated Exercises—The Navy shall conduct pre-event planning and training to ensure environmental awareness of all exercise participants. When this event is proposed to be conducted in Puget Sound, Navy event planners shall consult with Navy biologists who shall contact NMFS during the planning process in order to determine likelihood of gray whale or southern resident killer whale presence in the proposed exercise area as planners consider specifics of the event.

(ii) Small Boat Attack Gunnery Exercises—The Navy shall conduct pre-event planning and training to ensure environmental awareness of all exercise participants. When this event is proposed to be conducted in and around Naval Station Everett, Naval Base Kitsap Bangor, or Naval Base Kitsap Bremerton in Puget Sound, Navy event planners shall consult with Navy biologists who shall contact NMFS early in the planning process in order to determine the extent marine mammals may be present in the immediate vicinity of the proposed exercise area as planners consider the specifics of the event.

(iii) Missile Exercise—The Navy shall conduct Missile Exercises using high explosives at least 50 nm from shore in the NWTT Offshore Area.

(iv) BOMBEX—The Navy shall conduct BOMBEX (high explosive munitions) greater than 50 nm from shore.

(v) BOMBEX (non-explosive practice munitions)—The Navy shall conduct BOMBEX (non-explosive practice munitions) events at least 20 nm from shore and shall not conduct BOMBEX events within the Olympic Coast National Marine Sanctuary.

(vi) Mine Countermeasure and Neutralization Underwater Detonations—The Navy shall require approval from U.S. Third Fleet prior to conducting mine countermeasure and neutralization underwater detonations at Hood Canal or Crescent Harbor.

(vii) Hull Mounted Mid-Frequency Active Sonar Training—The Navy shall require approval from U.S. Pacific Fleet's designated authority prior to conducting hull-mounted mid-frequency active sonar on vessels while training underway in Puget Sound and the Strait of Juan de Fuca.

(viii) Pierside Maintenance or Testing of Sonar Systems—The Navy shall require approval from U.S. Pacific Fleet's designated authority or Systems Command designated authority (as applicable to ship and submarine active sonar use) prior to conducting pierside maintenance or testing in Puget Sound or the Strait of Juan de Fuca.

(b) [Reserved]

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§218.145   Requirements for monitoring and reporting.

(a) The Navy is required to cooperate with the NMFS, and any other Federal, state or local agency monitoring the impacts of the activity on marine mammals.

(b) General Notification of Injured or Dead Marine Mammals—Navy personnel shall ensure that NMFS is notified immediately (or as soon as clearance procedures allow) if an injured, stranded, or dead marine mammal is found during or shortly after, and in the vicinity of, any Navy training exercise utilizing MFAS, HFAS, or underwater explosive detonations. The Navy will provide NMFS with species or description of the animal(s), the condition of the animal(s) (including carcass condition if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available). In the event that an injured, stranded, or dead marine mammal is found by the Navy that is not in the vicinity of, or during or shortly after, MFAS, HFAS, or underwater explosive detonations, the Navy will report the same information as listed above as soon as operationally feasible and clearance procedures allow.

(c) General Notification of Ship Strike—In the event of a ship strike by any Navy vessel, at any time or place, the Navy shall do the following:

(1) Immediately report to NMFS the species identification (if known), location (lat/long) of the animal (or the strike if the animal has disappeared), and whether the animal is alive or dead (or unknown), and the time of the strike.

(2) Report to NMFS as soon as operationally feasible the size and length of animal, an estimate of the injury status (ex., dead, injured but alive, injured and moving, unknown, etc.), vessel class/type and operational status.

(3) Report to NMFS the vessel length, speed, and heading as soon as feasible.

(4) Provide NMFS a photo or video, if equipment is available.

(5) Within 2 weeks of the strike, provide NMFS with a detailed description of the specific actions of the vessel in the 30-minute timeframe immediately preceding the strike, during the event, and immediately after the strike (e.g., the speed and changes in speed, the direction and changes in direction, other maneuvers, sonar use, etc., if not classified); a narrative description of marine mammal sightings during the event and immediately after, and any information as to sightings prior to the strike, if available; and use established Navy shipboard procedures to make a camera available to attempt to capture photographs following a ship strike.

(d) Event Communication Plan—The Navy shall develop a communication plan that will include all of the communication protocols (phone trees, etc.) and associated contact information required for NMFS and the Navy to carry out the necessary expeditious communication required in the event of a stranding or ship strike, including as described in the proposed notification measures above.

(e) The Navy must conduct all monitoring and/or research required under the Letter of Authorization including abiding by the NWTT monitoring plan. (http://www.nmfs.noaa.gov/pr/permits/incidental/military.htm).

(f) Annual NWTT Monitoring Report—The Navy shall submit an annual report of the NWTT monitoring describing the implementation and results of the NWTT monitoring efforts from the previous calendar year. Data collection methods will be standardized across range complexes and study areas to allow for comparison in different geographic locations. Although additional information will be gathered, the protected species observers collecting marine mammal data pursuant to the NWTT monitoring plan shall, at a minimum, provide the same marine mammal observation data required in this section. The report shall be submitted either 90 days after the calendar year, or 90 days after the conclusion of the monitoring year to be determined by the Adaptive Management process. The NWTT Monitoring Report may be provided to NMFS within a larger report that includes the required Monitoring Plan reports from multiple range complexes and study areas (the multi-Range Complex Annual Monitoring Report). Such a report would describe progress of knowledge made with respect to monitoring plan study questions across all Navy ranges associated with the Integrated Comprehensive Monitoring Program. Similar study questions shall be treated together so that progress on each topic shall 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.

(g) Annual NWTT Exercise and Testing Reports—The Navy shall submit preliminary reports detailing the status of authorized sound sources within 21 days after the anniversary of the date of issuance of the LOA. The Navy shall submit detailed reports 3 months after the annual anniversary of the date of issuance of the LOA. The detailed annual reports shall describe the level of training and testing conducted during the reporting period, and a summary of sound sources used (total annual hours or quantity [per the LOA] of each bin of sonar or other non-impulsive source; total annual number of each type of explosive exercises; total annual expended/detonated rounds [missiles, bombs, etc.] for each explosive bin; and improved Extended Echo-Ranging System (IEER)/sonobuoy summary, including total number of IEER events conducted in the Study Area, total expended/detonated rounds (buoys), and total number of self-scuttled IEER rounds. The analysis in the detailed reports will be based on the accumulation of data from the current year's report and data collected from previous reports. The annual classified exercise reports will also include the amount of hull-mounted mid-frequency and high frequency active sonar use during training and testing activities in the Olympic Coast National Marine Sanctuary and in the months specified for the following three feeding areas (to the extent that active sonar training or testing does occur in these areas): The Humpback Whale Northern Washington feeding area (May through November); the Stonewall and Heceta Bank feeding area (May through November) and the Gray Whale Northern Puget Sound Feeding Area (March through May).

(h) 5-year Close-out Exercise and Testing Report—This report will be included as part of the 2020 annual exercise or testing report. This report will provide the annual totals for each sound source bin with a comparison to the annual allowance and the 5-year total for each sound source bin with a comparison to the 5-year allowance. Additionally, if there were any changes to the sound source allowance, this report will include a discussion of why the change was made and include the analysis to support how the change did or did not result in a change in the EIS and final rule determinations. The report will be submitted 3 months after the expiration of the rule. NMFS will submit comments on the draft close-out report, if any, within 3 months of receipt. The report will be considered final after the Navy has addressed NMFS' comments, or 3 months after the submittal of the draft if NMFS does not provide comments.

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§218.146   Applications for Letters of Authorization.

To incidentally take marine mammals pursuant to the regulations in this subpart, the U.S. citizen (as defined by §216.106) conducting the activity identified in §218.140(c) (the U.S. Navy) must apply for and obtain either an initial LOA in accordance with §218.147 or a renewal under §218.148.

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§218.147   Letters of Authorization.

(a) An LOA, unless suspended or revoked, will be valid for a period of time not to exceed the period of validity of this subpart.

(b) Each LOA will 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 mitigation, monitoring and reporting.

(c) Issuance, modification, or renewals of LOAs will be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected species or stock of marine mammal(s).

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§218.148   Renewals and Modifications of Letters of Authorization and Adaptive Management.

(a) A Letter of Authorization issued under §§216.106 and 218.147 of this chapter for the activity identified in §218.140(c) will be renewed or modified upon request of the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision of this chapter), and;

(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were adequately implemented.

(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis illustrating the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §§216.106 and 218.147 of this chapter for the activity identified in §218.144 of this chapter may be modified by NMFS under the following circumstances:

(1) Adaptive Management—NMFS may modify (including add to, change, or remove) the existing mitigation, monitoring, or reporting measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, and reporting measures in an LOA include (but are not limited to):

(A) Results from 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 these regulations or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS would publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) Emergencies—If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in §218.142(c), an LOA may be modified without prior notification and an opportunity for public comment. Notification would be published in the Federal Register within 30 days of the action.

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