§ 219.75 - Mitigation requirements.

§ 219.75 Mitigation requirements.

When conducting the activities identified in § 219.71, the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.77 must be implemented. These mitigation measures must include but are not limited to:

(a) General conditions.

(1) SEFSC must 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;

(2) SEFSC must coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures;

(3) SEFSC must coordinate, on an annual basis, with all partners to ensure that marine mammal-related requirements, procedures, and decision-making processes are understood and properly implemented.

(4) SEFSC must establish and maintain cooperating partner working group(s) to identify circumstances of a take should it occur and any action necessary to avoid future take.

(i) Working groups must be established if a partner takes more than one marine mammal within 5 years to identify circumstances of marine mammal take and necessary action to avoid future take. Each working group must meet at least once annually.

(ii) Each working group must consist of at least one SEFSC representative knowledgeable of the mitigation, monitoring and reporting requirements contained within these regulations, one or more research institution or SEFSC representative(s) (preferably researcher(s) aboard vessel when take or risk of take occurred), one or more staff from NMFS Southeast Regional Office Protected Resources Division, and one or more staff from NMFS Office of Protected Resources.

(5) When deploying any type of sampling gear at sea, SEFSC must at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.

(6) SEFSC must implement handling and/or disentanglement protocols that must be provided to survey personnel. During fishery surveys where there is a potential for take, at least two persons aboard SEFSC ships and one person aboard smaller vessels, including vessels operated by partners where no SEFSC staff are present, must be trained in marine mammal handling, release, and disentanglement procedures.

(7) For research surveys using gear that has the potential to hook or entangle a marine mammal in open-ocean waters (as defined from the coastline seaward), the SEFSC must implement move-on rule mitigation protocol upon observation of any marine mammal other than dolphins and porpoises attracted to the vessel (see specific gear types below for marine mammal monitoring details). Specifically, if one or more marine mammals (other than dolphins and porpoises) are observed near the sampling area 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, SEFSC must either remain onsite or move on to another sampling location. If remaining onsite, the set must be delayed until the animal(s) depart or appear to no longer be at risk of interacting with the vessel or gear. At such time, the SEFSC may deploy gear. The SEFSC must use best professional judgment, in accordance with this paragraph, in making decisions related to deploying gear.

(8) Vessels Operation - While transiting in areas subjected to the North Atlantic right whale ship strike rule, all SEFSC-affiliated research vessels (NOAA vessels, NOAA chartered vessels, and research partner vessels) must abide by the required speed restrictions and sighting alert protocols. All NOAA research vessels operating in North Atlantic right whale habitat participate in the Right Whale Early Warning System.

(9) The SEFSC must avoid baiting the waters (i.e, chumming) during all surveys.

(b) Trawl survey mitigation. In addition to the general conditions provided in § 219.75(a), the following measures must be implemented during trawl surveys:

(1) SEFSC must conduct fishing operations as soon as practicable upon arrival at the sampling station and, if practicable, prior to other environmental sampling;

(2) The SEFSC must limit tow times to 30 minutes (except for sea turtle research trawls);

(3) The SEFSC must, during haul back, open cod end close to deck/sorting table to avoid damage to animals that may be caught in gear and empty gear as quickly as possible after retrieval haul back;

(4) The SEFSC must delay gear deployment if any marine mammals are believed to be at risk of interaction;

(5) The SEFSC must retrieve gear immediately if any marine mammals are believed to be entangled or at risk of entanglement;

(6) Dedicated marine mammal observations must occur at least 15 minutes prior to the beginning of net deployment when trawling occurs in waters less than 200 meters in depth. If trawling occurs in waters deeper than 200 m, dedicated marine mammal observations must occur at least 30 minutes prior to net deployment. This watch may include approach to the sampling station within 0.5 nm. Marine mammal watches should be conducted by systematically scanning the surrounding waters and marsh edge (if visible) 360 degrees around the vessel. If dolphin(s) are sighted and believed to be at-risk of interaction (e.g., moving in the direction of the vessel/gear; moms/calves close to the gear; etc.), gear deployment should be delayed until the animal(s) are no longer at risk or have left the area on their own. If species other than dolphins are sighted, trawling must not be initiated and the marine mammal(s) must be allowed to either leave or pass through the area safely before trawling is initiated. All marine mammal sightings must be logged and reported per § 219.76 of this subpart.

(7) The SEFSC must retrieve gear immediately if marine mammals are believed to be captured/entangled in a net or associated gear (e.g., lazy line) and follow disentanglement protocols;

(8) The SEFSC must minimize “pocketing” in areas of trawl nets where dolphin depredation evidence is commonly observed;

(9) When conducting research under an ESA section 10(a)(1)(A) scientific research permit issued by NMFS, all marine mammal mitigation and monitoring protocol contained within that permit must be implemented;

(10) SEFSC must implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and must carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment; and

(11) The SEFSC must continue investigation into gear modifications (e.g., stiffening lazy lines) and the effectiveness of gear modification at avoiding entanglement, as funding allows.

(c) Seine net and gillnet survey mitigation. In addition to the general conditions provided in paragraph (a) of this section, the following measures must be implemented during seine and gillnet surveys:

(1) Conduct gillnet and trammel net research activities during daylight hours only.

(2) Limit soak times to the least amount of time required to conduct sampling;

(3) Conduct dedicated marine mammal observation monitoring beginning 15 minutes prior to deploying the gear and continue through deployment and haulback;

(4) Hand-check the net every 30 minutes if soak times are longer than 30 minutes or immediately if disturbance is observed;

(5) Reduce net slack and excess floating and trailing lines;

(6) Repair damaged nets prior to deploying;

(7) Delay setting net if a marine mammal is deemed to be at-risk of entanglement;

(8) Pull net immediately if a marine mammal is entangled and follow disentanglement procedures; and

(9) If marine mammals are sighted in the sampling area during active netting, the SEFSC must raise and lower the net leadline. If marine mammals do not immediately depart the area and the animal appears to be at-risk of entanglement (e.g., interacting with or on a path towards the net), the SEFSC must delay or pull all gear immediately.

(d) Hook and line (including longline) survey mitigation. In addition to the General Conditions provided in paragraph (a) of this section, the following measures must be implemented during hook and line surveys:

(1) SEFSC must deploy hook and line gear as soon as is practicable upon arrival at the sampling station.

(2) SEFSC must initiate marine mammal observations (visual observation) no less than 30 minutes prior to gear deployment if sampling is conducted in waters greater than 200 m. If sampling in water less than 200 m, the SEFSC must initiate marine mammal observations no less than 15 minutes prior to setting gear. Observations must be conducted by scanning the surrounding waters with the naked eye and range-finding binoculars (or monocular) when longlines exceed observation distances using the naked eye. During nighttime operations, visual observation must be conducted using available vessel lighting.

(3) SEFSC must implement the move-on rule mitigation protocol, as described in paragraph (a)(7) of this section.

(4) SEFSC must maintain visual monitoring effort, where practicable, during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SEFSC must take the most appropriate action to avoid marine mammal interaction. SEFSC may use best professional judgment in making this decision.

(5) If gear deployment or fishing has been suspended because of the presence of marine mammals, SEFSC may resume such operations when practicable only when the animals are believed to have departed the area in accordance with the move-on rule as described in paragraph (a)(7) of this section. If longline operations have been delayed because of the presence of protected species, the vessel resumes longline operations only when these species have not been sighted within 15 minutes if in less than 200 m or 30 minutes if greater than 200 m of water, or otherwise determined to no longer be at risk. SEFSC may use best professional judgment in making this decision.

(6) SEFSC must implement standard survey protocols, including maximum soak durations and limiting longline length to that necessary.

(7) For pelagic, surface longlines, gangion length must allow hooked animals to reach the surface. SEFSC must immediately reel in lines if marine mammals are deemed to be at risk of interacting with gear.

(8) SEFSC must follow existing Dolphin Friendly Fishing Tips available at http://sero.nmfs.noaa.gov/protected_resources/outreach_and_education/documents/dolphin_friendly_fishing_tips.pdf.

(9) SEFSC must not discard leftover bait overboard while actively fishing.

(10) SEFSC must inspect tackles daily to avoid unwanted line breaks.

(11) Pull gear immediately if a marine mammal is hooked and follow disentanglement procedures.

(12) Avoid using stainless steel hooks.

(13) For pelagic longline surveys in the Atlantic Ocean, follow the Pelagic Longline Take Reduction Plan and Longline Marine Mammal Handling and Release Guidelines.

(d) Electrofishing.

(1) SEFSC must implement marine mammal monitoring 15 minutes prior to the onset of electrofishing (this can include approach to the survey site). If the vessel moves to another survey site, the 15 minutes observation period must be repeated.

(2) SEFSC must implement a 50-m safety zone. If a marine mammal is observed within 50 m of the vessel or on a path toward the vessel, electrofishing must be delayed. Electrofishing must not begin until the animal is outside of the 50 m safety zone or on a consistent path away from the vessel.

(3) All samples collected during electrofishing must remain on the vessel and not be discarded until all electrofishing is completed to avoid attracting protected species.