50 C.F.R. § 218.14

Current through November 30, 2024

Section 218.14 - Mitigation requirements

When conducting the activities identified in § 218.10(c) , the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 218.16 will be implemented. These mitigation measures include, but are not limited to:

(a)Procedural mitigation. Procedural mitigation is mitigation that the Navy will implement whenever and wherever an applicable training or testing activity takes place within the PMSR Study Area for each applicable activity category or stressor category and includes acoustic stressors (i.e., weapons firing noise), explosive stressors (i.e., medium-caliber and large-caliber projectiles, missiles and rockets, bombs), and physical disturbance and strike stressors (i.e., vessel movement; towed in-water devices (e.g., surface targets); small-, medium-, and large-caliber non-explosive practice munitions; non-explosive missiles and rockets; and non-explosive bombs).

(1)Environmental awareness and education. Navy personnel (including civilian personnel) involved in mitigation and training or testing reporting under the specified activities will complete one or more modules of the U.S. Navy Afloat Environmental Compliance Training Series, as identified in their career path training plan. Modules include: Introduction to the U.S. Navy Afloat Environmental Compliance Training Series, Marine Species Awareness Training, and U.S. Navy Protective Measures Assessment Protocol.

(2)Weapons firing noise. Weapons firing noise associated with large-caliber gunnery activities.

(i)Number of Lookouts and observation platform. One Lookout will be positioned on the ship conducting the firing. Depending on the activity, the Lookout could be the same as the one provided for under paragraph (a)(7)(i) of this section.

(ii)Mitigation zone and requirements. The mitigation zone will be 30 degrees on either side of the firing line out to 70 yd from the muzzle of the weapon being fired.

(A)Prior to the initial start of the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of weapons firing.

(B)During the activity. Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease weapons firing.

(C)Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing weapons firing) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from weapons firing noise;

(3)Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 30 minutes (min); or

(4)Firing ship transit. For mobile activities, the firing ship has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

(3)Explosive medium-caliber and large-caliber projectiles. Gunnery activities using explosive medium-caliber and large-caliber projectiles. Mitigation applies to activities using a surface target.

(i)Number of Lookouts and observation platform. One Lookout will be on the vessel or aircraft conducting the activity. For activities using explosive large-caliber projectiles, depending on the activity, the Lookout could be the same as the one described in paragraph (a)(2)(i) of this section. If additional platforms are participating in the activity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) will support observing the relevant mitigation zone for marine mammals and other applicable biological resources while performing their regular duties.

(ii)Mitigation zone and requirements. The relevant mitigation zones are as follows: 200 yd (182.88 m) around the intended impact location for air-to-surface activities using explosive medium-caliber projectiles; 600 yd (548.64 m) around the intended impact location for surface-to-surface activities using explosive medium-caliber projectiles; and 1,000 yd (914.4 m) around the intended impact location for surface-to-surface activities using explosive large-caliber projectiles.

(A)Prior to the initial start of the activity (e.g., when maneuvering on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.

(C)Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel must allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on a its course, speed, and movement away from the intended impact location;

(3)Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing; or

(4)Impact location transit. For activities using mobile targets, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

(D)After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual observation of the area where detonations occurred.

(4)Explosive missiles and rockets. Aircraft-deployed explosive missiles and rockets. Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km).

(i)Number of Lookouts and observation platform. One Lookout will be positioned in an aircraft. If additional platforms are participating in the activity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) will support observing the relevant mitigation zone for marine mammals and other applicable biological resources while performing their regular duties.

(ii)Mitigation zone and requirements. The relevant mitigation zones are as follows: 900 yd (822.96 m) around the intended impact location for missiles or rockets with 0.6-20 lb net explosive weight; and 2,000 yd (1,828.8 m) around the intended impact location for missiles with 21-500 lb net explosive weight.

(A)Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.

(C)Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location; or

(3)Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.

(D)After completion of the activity (e.g., prior to maneuvering off station). Navy personnel will, when practical (e.g., when platforms are not constrained by fuel restrictions or mission-essential follow-on commitments), observe for marine mammals in the vicinity of where detonations occurred; if any injured or dead marine mammals are observed, Navy personnel will follow established incident reporting procedures. If additional platforms are supporting this activity (e.g., providing range clearance), Navy personnel on these assets will assist in the visual observation of the area where detonations occurred.

(5)Explosive bombs. Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km).

(i)Number of Lookouts and observation platform. One Lookout will be positioned in an aircraft conducting the activity. If additional platforms are participating in the activity, Navy personnel positioned on those assets (e.g., safety observers, evaluators) will support observing the relevant mitigation zone for marine mammals and other applicable biological resources while performing their regular duties.

(ii)Mitigation zone and requirements. The relevant mitigation zones is 2,500 yd (2,286 m) around the intended target.

(A)Prior to the initial start of the activity (e.g., when arriving on station). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of bomb deployment.

(B)During the activity (e.g., during target approach). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will cease bomb deployment.

(C)Commencement/recommencement conditions after a marine mammal sighting before or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended target;

(3)Clear from additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or

(4)Intended target transit. For activities using mobile targets, the intended target has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

(6)Vessel movement. The mitigation will not be required if: the vessel's safety is threatened; the vessel is restricted in its ability to maneuver (e.g., during launching and recovery of aircraft or landing craft, during towing activities, when mooring); the vessel is submerged or operated autonomously; or if impracticable based on mission requirements (e.g., during Amphibious Assault and Amphibious Raid exercises).

(i)Number of Lookouts and observation platform. One Lookout will be on the vessel that is underway.

(ii)Mitigation zone and requirements. The relevant mitigation zones are as follows: 500 yd (457.2 m) around whales; and 200 yd (182.88 m) around all other marine mammals (except bow-riding dolphins and pinnipeds hauled out on man-made navigational structures, port structures, and vessels).

(A)During the activity. When underway Navy personnel will observe the mitigation zone for marine mammals; if marine mammals are observed, Navy personnel will maneuver to maintain distance.

(B) [Reserved]

(iii)Reporting. If a marine mammal vessel strike occurs, Navy personnel will follow the established incident reporting procedures.

(7)Small-, medium-, and large-caliber non-explosive practice munitions. Mitigation applies to activities using a surface target.

(i)Number of Lookouts and observation platform. One Lookout will be positioned on the platform conducting the activity. Depending on the activity, the Lookout could be the same as the one described in paragraph (a)(2)(i) of this section.

(ii)Mitigation zone and requirements. The relevant mitigation zone is 200 yd (182.88 m) around the intended impact location.

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location;

(3)Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min for aircraft-based firing or 30 min for vessel-based firing;

(4)Impact location transit. For activities using a mobile target, the intended impact location has transited a distance equal to double that of the mitigation zone size beyond the location of the last sighting.

(8)Non-explosive missiles and rockets. Aircraft-deployed non-explosive missiles and rockets. Mitigation applies to activities using a maritime surface target at ranges of up to 75 nmi (139 km).

(i)Number of Lookouts and observation platform. One Lookout will be positioned in an aircraft.

(ii)Mitigation zone and requirements. The relevant mitigation zone is 900 yd (822.96 m) around the intended impact location.

(A)Prior to the initial start of the activity (e.g., during a fly-over of the mitigation zone). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals; if floating vegetation or marine mammals are observed, Navy personnel will relocate or delay the start of firing.

(C)Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing firing) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based on its course, speed, and movement away from the intended impact location; or

(3)Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min when the activity involves aircraft that have fuel constraints, or 30 min when the activity involves aircraft that are not typically fuel constrained.

(9)Non-explosive bombs. Mitigation applies to activities using a maritime surface target at ranges up to 75 nmi (139 km).

(i)Number of Lookouts and observation platform. One Lookout will be positioned in an aircraft.

(ii)Mitigation zone and requirements. The relevant mitigation zone is 900 yd (822.96 m) around the intended target.

(B)During the activity (e.g., during approach of the target or intended minefield location). Navy personnel will observe the mitigation zone for floating vegetation and marine mammals and, if floating vegetation or marine mammals are observed, Navy personnel will cease bomb deployment.

(C)Commencement/recommencement conditions after a marine mammal sighting prior to or during the activity. Navy personnel will allow a sighted marine mammal to leave the mitigation zone prior to the initial start of the activity (by delaying the start) or during the activity (by not recommencing bomb deployment) until one of the following conditions has been met:

(1)Observed exiting. The animal is observed exiting the mitigation zone;

(2)Determined to have exited. The animal is determined to have exited the mitigation zone based its course, speed, and movement away from the intended target or minefield location;

(3)Clear of additional sightings. The mitigation zone has been clear from any additional sightings for 10 min; or

(10)Target and missile launches from San Nicolas Islands (SNI). Target and missile launch activities from SNI.

(i)Mitigation zone and requirements. 305 m (1,000 ft) over pinniped haulouts. Missiles will not cross over pinniped haulouts at elevations less than 305 m (1,000 ft) above the haulout. All manned aircraft and helicopter flight paths will maintain a minimum distance of 305 m (1,000 ft) from recognized seal haulouts and rookeries, except in emergencies or for real-time security incidents. For unmanned aircraft systems (UAS), the following minimum altitudes will be maintained over pinniped haulout areas and rookeries: Class 0-2 UAS will maintain a minimum altitude of 300 ft; Class 3 UAS will maintain a minimum altitude of 500 ft; Class 4 or 5 UAS will not be flown below 1,000 ft.

(A)Pinniped haulouts. Navy personnel will not enter pinniped haulouts or rookeries. Personnel may be adjacent to pinniped haulouts and rookeries prior to and following a launch for monitoring purposes.

(B)Number of launch events. Navy will not conduct more than 40 launch events annually. Up to 10 launch events of the 40 annual launch events may occur at night.

(C)Launches during the peak pinniped pupping season. Launches will be scheduled to avoid peak pinniped pupping periods between January and July, to the maximum extent practicable.

(D)Unauthorized species. If a species for which authorization has not been granted is taken, or a species for which authorization has been granted but the authorized takes are met, the Navy will consult with NMFS to determine how to proceed.

(E)Review of launch procedures. The Navy will review the launch procedure and monitoring methods, in cooperation with NMFS, if any incidents of injury or mortality of a pinniped are discovered during post-launch surveys, or if surveys indicate possible effects to the distribution, size, or productivity of the affected pinniped populations as a result of the specified activities. If necessary, appropriate changes will be made through modification to the LOA prior to conducting the next launch of the same vehicle.

(ii) [Reserved]

(b)Seasonal awareness messages. In addition to procedural mitigation, Navy personnel will implement seasonal awareness notification messages throughout the PMSR Study Area to avoid interaction with large whales during transit.

(1)Blue whale awareness notification message.

(i) Navy personnel will issue a seasonal awareness notification message to alert Navy ships and aircraft operating throughout the PMSR Study Area to the possible presence of increased concentrations of blue whales June 1 through October 31.

(ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of blue whales that, when concentrated seasonally, may become vulnerable to vessel strikes.

(iii) Navy personnel will use the information from the awareness notification message to assist their visual observation of applicable mitigation zones during training and testing activities and to aid in the implementation of procedural mitigation.

(2)Gray whale awareness notification message.

(i) Navy personnel will issue a seasonal awareness notification message to alert Navy ships and aircraft operating through the PMSR Study Area to the possible presence of increased concentrations of gray whales November 1 through March 31.

(ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of gray whales that, when concentrated seasonally, may become vulnerable to vessel strikes.

(3)Fin whale awareness notification message.

(ii) To maintain safety of navigation and to avoid interactions with large whales during transits, Navy personnel will instruct vessels to remain vigilant to the presence of fin whales that, when concentrated seasonally, may become vulnerable to vessel strikes.

50 C.F.R. §218.14

87 FR 40960 , 7/7/2022 through 7/7/2029