When conducting the activities identified in § 219.61(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.67 must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions. (1) PIFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon. Although these regulations do not always explicitly reference those with decision making authority from cooperative platforms, all mitigation measures apply with equal force to non-NOAA vessels and personnel as they do to NOAA vessels and personnel.
(2) PIFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between the ship's crew (Commanding Officer or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) PIFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) PIFSC shall conduct monitoring for marine mammals when deploying any type of sampling gear at sea and take action to prevent and minimize any take of marine mammals by deployed sampling gear.
(5) PIFSC shall implement handling and/or disentanglement protocols as specified in the guidance that shall be provided to PIFSC survey personnel.
(b) Vessel strike avoidance. (1) PIFSC must maintain a 100-meter (m) separation distance between research vessels and large whales (i.e., baleen whales and sperm whales) at all times. At any time during a survey or transit, if a crew member or designated marine mammal observer standing watch sights marine mammals that may intersect with the vessel course that individual must immediately communicate the presence of marine mammals to the bridge, and the vessel must take any necessary action to avoid incidental collisions.
(2) PIFSC must reduce vessel speed to 10 knots (kt) or less when piloting vessels within 1 kilometer (km; as visibility permits) of marine mammals.
(c) Trawl survey protocols. (1) PIFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.
(2) PIFSC shall initiate marine mammal watches (visual observation) at least 30 minutes prior to beginning of net deployment, but shall also conduct monitoring during any pre-set activities including trackline reconnaissance, conductivity, temperature, and depth (CTD) casts, and plankton or bongo net hauls. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed within 500 m of the sampling station in the 10 minutes before setting the trawl gear, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, the PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further 10 minute observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted further than 500 m from the vessel shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions.
(4) PIFSC shall maintain visual monitoring effort during the entire period of time that trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, PIFSC shall take the most appropriate action to avoid marine mammal interaction. PIFSC may use best professional judgment in making this decision. PIFSC must retrieve gear immediately if there is any indication marine mammals are captured or entangled in a net or associated gear (e.g., lazy line) and follow disentanglement protocols approved by the NMFS Office of Protected Resources (OPR).
(5) If trawling operations have been suspended because of the presence of marine mammals, PIFSC may resume trawl operations when practicable only when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this determination.
(6) PIFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval.
(7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(d) Longline survey protocols. (1) PIFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station.
(2) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net, line, or associated gear and follow disentanglement protocols approved by the NMFS OPR.
(4) PIFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, PIFSC shall take the most appropriate action to avoid marine mammal interaction. PIFSC may use best professional judgment in making this decision.
(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, PIFSC may resume such operations when practicable only when the animals are believed to have departed the area. PIFSC may use best professional judgment in making this decision.
(6) When conducting longline research in Hawai'i, American Samoa, Guam, the Commonwealth of the Northern Marianas, or exclusive economic zone (EEZs) of the Pacific Insular Areas, PIFSC shall adhere to the requirements on commercial longline gear as specified in 50 CFR parts 229, 300, 404, 600, and 665, and shall adhere to the following procedures when setting and retrieving longline gear:
(i) When shallow-setting anywhere and setting longline gear from the stern, completely thawed and blue-dyed bait shall be used (two 1-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard. Setting shall only occur at night and begin 1 hour after local sunset and finish 1 hour before next sunrise, with lighting kept to a minimum.
(ii) When deep-setting north of 23° N and setting longline gear from the stern, 45 gram (g) or heavier weights shall be attached within 1 m of each hook. A line shooter shall be used to set the mainline. Completely thawed and blue-dyed bait shall be used (two 1-pound containers of blue-dye shall be kept on the boat for backup). Fish parts and spent bait with all hooks removed shall be kept for strategic offal discard. Retained swordfish shall be cut in half at the head; used heads and livers shall also be used for strategic offal discard.
(iii) When shallow-setting anywhere and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it shall be mounted at least 1 m forward from the stern corner. A bird curtain shall be used aft of the setting station during the set. Gear shall be deployed so that hooks do not resurface. Forty-five g or heavier weights shall be attached within 1 m of each hook.
(iv) When deep-setting north of 23° N and setting longline gear from the side, mainline shall be deployed from the port or starboard side at least 1 m forward of the stern corner. If a line shooter is used, it shall be mounted at least 1 m forward from the stern corner. A specified bird curtain shall be used aft of the setting station during the set. Gear shall be deployed so that hooks do not resurface. Forty-five g or heavier weights shall be attached within 1 m of each hook.
(7) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(e) Small boat and diver protocols. (1) Surveys and in-water operations shall be conducted with at least two divers observing for the proximity of marine mammals, a coxswain driving the small boat, and a topside spotter. Spotters and coxswains shall look out for divers, marine mammals, and environmental hazards. Topside spotters may also work as coxswains, depending on team assignment and boat layout.
(2) Before approaching any shoreline or exposed reef, all observers shall examine any visible land areas for the presence of marine mammals. Scientists, divers, and coxswains shall follow best management practices (BMPs) for boat operations and diving activities, including:
(i) Maintain constant vigilance for the presence of marine mammals.
(ii) Marine mammals shall not be encircled or trapped between multiple vessels or between vessels and the shore.
(iii) If approached by a marine mammal, the engine shall be put in neutral and the animal allowed to pass.
(iv) All in-water work not already underway shall be postponed until whales are beyond 100 yards or other marine mammals are beyond 50 yards from the vessel or diver, unless the work is covered under a separate permit that allows activity in proximity to marine mammals. Activity shall commence only after the animal(s) depart the area.
(v) If marine mammals enter the area while in-water work is already in progress, the activity may continue only when that activity has no reasonable expectation to adversely affect the animal(s). PIFSC may use best professional judgment in making this decision.
(vi) Personnel shall make no attempt to feed, touch, ride, or otherwise intentionally interact with any marine mammals unless undertaken to rescue a marine mammal or otherwise authorized by another permit.
(vii) Mechanical equipment shall be monitored to ensure no entanglements occur with protected species.
(viii) Team members shall immediately respond to an entangled animal, halting operations and providing an onsite response assessment (allowing the animal to disentangle itself, assisting with disentanglement, etc.), unless doing so would compromise human safety.
(f) Marine debris research and removal protocols. (1) Prior to initiating any marine debris removal operations, marine debris personnel shall thoroughly examine the beaches and near shore environments/waters for Hawaiian monk seals before approaching marine debris sites and initiating removal activities.
(2) Debris shall be retrieved in compliance with all Federal laws, rules, and regulations governing wildlife in the area. Debris removal shall occur a minimum distance of 50 yards from all monk seals and a minimum of 100 yards from female seals with pups.
(g) Bottomfishing protocols. (1) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of bottomfishing hook-and-line gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(2) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the set shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the set may be made. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions.
(3) Dead fish and bait shall not be discarded from the vessel while actively fishing. Dead fish and bait shall be discarded after gear is retrieved and immediately before the vessel leaves the sampling location for a new area.
(4) If a hooked fish is retrieved and it appears to the fisher (based on best professional judgment) that it has been damaged by a marine mammal, visual monitoring shall be enhanced around the vessel for the next 10 minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is seen in the vicinity of a bottomfishing operation, the gear shall be retrieved immediately and the vessel shall move to another sampling location where marine mammals are not present. Catch loss and a “move on” for marine mammals shall be tallied on the data sheet.
(5) If bottomfishing gear is lost while fishing, visual monitoring shall be enhanced around the vessel for the next 10 minutes. Fishing may continue during this time. If a shark is sighted, visual monitoring may return to normal. If a marine mammal is observed in the vicinity, it shall be monitored until a determination can be made (based on best professional judgment) of whether gear is sighted attached to the animal, gear is suspected to be on the animal, or gear is not observed on the animal and it behaves normally. If gear is sighted with gear attached or suspected to be attached, procedures and actions for incidental take shall be initiated, as outlined in § 219.66. Gear loss and a “move on” for marine mammals shall be tallied on the data sheet.
(h) Instrument and trap deployments. (1) PIFSC shall initiate marine mammal watches (visual observation) no less than 30 minutes (or for the duration of transit between set locations, if shorter than 30 minutes) prior to both deployment and retrieval of instruments and traps. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular).
(2) PIFSC shall implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals are observed in the vicinity of the planned location before gear deployment, and are considered at risk of interacting with the vessel or research gear, or appear to be approaching the vessel and are considered at risk of interaction, PIFSC shall either remain onsite or move on to another sampling location. If remaining onsite, the instrument or trap deployment shall be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period shall be conducted. If no further observations are made or the animals still do not appear to be at risk of interaction, then the gear may be deployed. If the vessel is moved to a different section of the sampling area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the PIFSC shall move again or skip the station. Marine mammals that are sighted shall be monitored to determine their position and movement in relation to the vessel to determine whether the move-on rule mitigation protocol should be implemented. PIFSC may use best professional judgment in making these decisions. PIFSC must retrieve gear immediately if marine mammals are believed to be entangled in an instrument or trap line or associated gear and follow disentanglement protocols.