50 CFR 218.144 - Mitigation requirements.

Regulations last checked for updates: Nov 25, 2024

Title 50 - Wildlife and Fisheries last revised: Nov 18, 2024

View all text of Subpart O [§ 218.140 - § 218.148]

§ 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) 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 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

(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.

(vii) Explosive missiles. Aircraft-deployed explosive missiles. Mitigation applies to activities using a surface target.

(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.

(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

(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

(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

(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.

(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]

source: 74 FR 28343, June 15, 2009, unless otherwise noted.

cite as: 50 CFR 218.144