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Title 50Chapter IISubchapter CPart 218Subpart P → §218.154


Title 50: Wildlife and Fisheries
PART 218—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS
Subpart P—Taking and Importing Marine Mammals; U.S. Navy's Gulf of Alaska Temporary Maritime Activities Area (GOA TMAA) Study Area


§218.154   Mitigation.

(a) After review of best available science, the following mitigation was determined to result in the least practicable adverse effect on marine mammal species or stocks. When conducting training activities, as identified in §218.150, the mitigation measures contained in the LOA issued under §216.106 of this chapter and §218.157 must be implemented. These mitigation measures include, but are not limited to:

(1) Lookouts. The Navy shall have two types of lookouts for the purposes of conducting visual observations: Those positioned on ships; and those positioned ashore, in aircraft, or on boats. The following are protective measures concerning the use of lookouts.

(i) Lookouts positioned on surface ships shall be dedicated solely to diligent observation of the air and surface of the water. Their observation objectives shall 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) Due to manning and space restrictions on aircraft, small boats, and some Navy ships, lookouts for these platforms may be supplemented by the aircraft crew or pilot, boat crew, range site personnel, or shore-side personnel. Lookouts positioned in minimally manned platforms may be responsible for tasks in addition to observing the air or surface of the water (e.g., navigation of a helicopter or small boat). However, all lookouts shall, considering personnel safety, practicality of implementation, and impact on the effectiveness of the activity, comply with the observation objectives described in paragraph (a)(1)(i) of this section for lookouts positioned on ships.

(iii) All personnel standing watch on the bridge, Commanding Officers, Executive Officers, maritime patrol aircraft aircrews, anti-submarine warfare helicopter crews, civilian equivalents, and lookouts shall successfully complete the United States Navy Marine Species Awareness Training prior to standing watch or serving as a lookout.

(iv) Lookout measures for non-impulsive sound. (A) With the exception of vessels less than 65 ft (20 m) in length, ships using hull-mounted mid-frequency active sonar sources associated with anti-submarine warfare activities at sea shall have two Lookouts at the forward position of the vessel.

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

(C) During non-hull mounted mid-frequency active sonar training activities, Navy aircraft participating in exercises at sea shall conduct and maintain, when operationally feasible and safe, surveillance for marine species of concern as long as it does not violate safety constraints or interfere with the accomplishment of primary operational duties. Helicopters shall observe/survey the vicinity of an anti-submarine warfare training event for 10 minutes before the first deployment of active (dipping) sonar in the water.

(D) Ships or aircraft conducting non-hull-mounted mid-frequency active sonar, such as helicopter dipping sonar systems, shall maintain one lookout.

(E) Ships conducting high-frequency active sonar shall maintain one lookout.

(v) Lookout measures for explosives and impulsive sound. (A) Aircraft conducting explosive signal underwater sound buoy activities using >0.5-2.5 lb. NEW shall have one lookout.

(B) Surface vessels or aircraft conducting small-, medium-, or large-caliber gunnery exercises against a surface target shall have one Lookout. From the intended firing position, trained Lookouts shall survey the mitigation zone for marine mammals prior to commencement and during the exercise as long as practicable. Towing vessels, if applicable, shall also maintain one Lookout. If a marine mammal is sighted in the vicinity of the exercise, the tow vessel shall immediately notify the firing vessel in order to secure gunnery firing until the area is clear.

(C) Aircraft conducting explosive bombing exercises shall have one lookout and any surface vessels involved shall have trained Lookouts. If surface vessels are involved, Lookouts shall survey for floating kelp and marine mammals. Aircraft shall visually survey the target and buffer zone for marine mammals prior to and during the exercise. The survey of the impact area shall be made by flying at 1,500 ft (460 m) or lower, if safe to do so, and at the slowest safe speed. Release of ordnance through cloud cover is prohibited: Aircraft must be able to actually see ordnance impact areas. Survey aircraft should employ most effective search tactics and capabilities.

(D) When aircraft are conducting missile exercises against a surface target, the Navy shall have one Lookout positioned in an aircraft. Aircraft shall visually survey the target area for marine mammals. Visual inspection of the target area shall be made by flying at 1,500 ft (457 m) or lower, if safe to do so, and at the slowest safe speed. Firing or range clearance aircraft must be able to actually see ordnance impact areas.

(E) Ships conducting explosive and non-explosive gunnery exercises shall have one Lookout on the ship. This may be the same lookout described in paragraph (a)(1)(v)(B) of this section for surface vessels conducting small-, medium-, or large-caliber gunnery exercises when that activity is conducted from a ship against a surface target.

(vi) Lookout measures for physical strike and disturbance. (A) While underway, surface ships shall have at least one Lookout with binoculars, and surfaced submarines shall have at least one Lookout with binoculars. Lookouts already posted for safety of navigation and man-overboard precautions may be used to fill this requirement. As part of their regular duties, Lookouts will watch for and report to the Officer of the Deck the presence of marine mammals.

(B) [Reserved]

(vii) Lookout measures for non-explosive practice munitions. (A) Gunnery exercises using non-explosive practice munitions (e.g., small-, medium-, and large-caliber) using a surface target shall have one Lookout.

(B) During non-explosive bombing exercises one Lookout shall be positioned in an aircraft and trained lookouts shall be positioned in any surface vessels involved.

(C) When aircraft are conducting non-explosive missile exercises (including exercises using rockets) against a surface target, the Navy shall have one Lookout positioned in an aircraft.

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

(i) Mitigation zones shall 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 shall 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 (90 m) of the sonar dome. Transmissions shall 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 (1830 m) beyond the location of the last detection, or the ship 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.

(D) 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 (90 m) of the source. Transmissions shall 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).

(iv) Mitigation zones for explosive and impulsive sound. (A) 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 NEW. Explosive signal underwater sonobuoys shall not be deployed if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone (around the intended deployment location). Explosive signal underwater sonobuoy deployment shall cease if a marine mammal is sighted within the mitigation zone. Detonations shall recommence if any one of the following conditions is met: 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. Passive acoustic monitoring shall also be conducted with Navy assets, such as sonobuoys, already participating in the activity. These assets would only detect vocalizing marine mammals within the frequency bands 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 would be reported to Lookouts posted in aircraft in order to increase vigilance of their visual surveillance.

(B) 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. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: 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.

(C) A mitigation zone with a radius of 600 yd (549 m) shall be established for large-caliber gunnery exercises with a surface target. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: 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 2,500 yd (2.3 km) around the intended impact location for explosive bombs and 1000 yd (920 m) for non-explosive bombs shall be established for bombing exercises. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing shall cease if a marine mammal is sighted within the mitigation zone. Bombing shall recommence if any one of the following conditions is met: 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.

(E) A mitigation zone of 70 yd (64 m) shall be established for all explosive large-caliber gunnery exercises conducted from a ship. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: 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) 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), providing it is safe to do so. 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) A mitigation zone of 250 yd (229 m) shall be established for all towed in-water devices, 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. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Firing shall cease if a marine mammal is sighted within the mitigation zone. Firing shall recommence if any one of the following conditions is met: 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 (920 m) shall be established for bombing exercises. Bombing shall cease if a marine mammal is sighted within the mitigation zone. The exercise shall not commence if concentrations of floating vegetation (kelp paddies) are observed in the mitigation zone. Bombing shall recommence if any one of the following conditions is met: 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) Cautionary Areas. The following are additional measures the Navy shall comply with when conducting training activities in the GOA TMAA Study Area:

(i) The Navy shall avoid training activities using hull-mounted surface ship active sonar and explosive detonations within the North Pacific Right Whale Cautionary Area, defined as the portion of the NMFS-identified biologically important feeding area for North Pacific right whale overlapping the GOA TMAA, except when required by national security needs.

(ii) In the event of national security needs, the Navy shall seek approval in advance from the Commander, U.S. Third Fleet, prior to conducting training activities using hull-mounted active sonar or explosive detonations within the Cautionary Area.

(4) Stranding response plan. (i) The Navy shall abide by the letter of the “Stranding Response Plan for the Gulf of Alaska Temporary Maritime Activities Area,” to include the following measures:

(A) Shutdown procedures. When an Uncommon Stranding Event (USE—defined in §218.151) occurs during an MTE in the Study Area, the Navy shall implement the procedures described in paragraphs (a)(4)(i)(A)(1) through (4) of this section:

(1) The Navy shall implement a shutdown when advised by a NMFS Office of Protected Resources Headquarters Senior Official designated in the GOA TMAA Study Area Stranding Communication Protocol that a USE involving live animals has been identified and that at least one live animal is located in the water. NMFS and the Navy shall maintain a dialogue, as needed, regarding the identification of the USE and the potential need to implement shutdown procedures.

(2) Any shutdown in a given area shall remain in effect in that area until NMFS advises the Navy that the subject(s) of the USE at that area die or are euthanized, or that all live animals involved in the USE at that area have left the area (either of their own volition or herded).

(3) If the Navy finds an injured or dead animal floating at sea during an MTE, the Navy shall notify NMFS immediately or as soon as operational security considerations allow. The Navy shall provide NMFS with species or description of the animal(s), the condition of the animal(s), including carcass condition if the animal(s) is/are dead, location, time of first discovery, observed behavior (if alive), and photo or video (if available). Based on the information provided, NFMS shall determine if, and advise the Navy whether a modified shutdown is appropriate on a case-by-case basis.

(4) In the event, following a USE, that qualified individuals are attempting to herd animals back out to the open ocean and animals are not willing to leave, or animals are seen repeatedly heading for the open ocean but turning back to shore, NMFS and the Navy shall coordinate (including an investigation of other potential anthropogenic stressors in the area) to determine if the proximity of mid-frequency active sonar training activities or explosive detonations, though farther than 14 nautical miles from the distressed animal(s), is likely contributing to the animals' refusal to return to the open water. If so, NMFS and the Navy shall further coordinate to determine what measures are necessary to improve the probability that the animals will return to open water and implement those measures as appropriate.

(B) Within 72 hours of NMFS notifying the Navy of the presence of a USE, the Navy shall provide available information to NMFS (per the GOA TMAA Study Area Communication Protocol) regarding the location, number and types of acoustic/explosive sources, direction and speed of units using mid-frequency active sonar, and marine mammal sightings information associated with training activities occurring within 80 nautical miles (148 km) and 72 hours prior to the USE event. Information not initially available regarding the 80-nautical miles (148-km), 72-hour period prior to the event shall be provided as soon as it becomes available. The Navy shall provide NMFS investigative teams with additional relevant unclassified information as requested, if available.

(ii) [Reserved]

(b) [Reserved]

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