[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2008 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
50
Parts 200 to 599
Revised as of October 1, 2008
Wildlife and Fisheries
________________________
Containing a codification of documents of general
applicability and future effect
As of October 1, 2008
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
[[Page ii]]
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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration,
Department of Commerce 3
Chapter III--International Fishing and Related
Activities 767
Chapter IV--Joint Regulations (United States Fish
and Wildlife Service, Department of the Interior and
National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations 875
Chapter V--Marine Mammal Commission 935
Finding Aids:
Material Approved for Incorporation by Reference........ 961
Table of CFR Titles and Chapters........................ 963
Alphabetical List of Agencies Appearing in the CFR...... 983
List of CFR Sections Affected........................... 993
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----------------------------
Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 50 CFR 216.1 refers
to title 50, part 216,
section 1.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
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INCORPORATION BY REFERENCE
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This material, like any other properly issued regulation, has the force
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What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
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A subject index to the Code of Federal Regulations is contained in a
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the daily Federal Register.
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the revision dates of the 50 CFR titles.
[[Page vii]]
REPUBLICATION OF MATERIAL
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Raymond A. Mosley,
Director,
Office of the Federal Register.
October 1, 2008.
[[Page ix]]
THIS TITLE
Title 50--Fish and Wildlife is composed of nine volumes. The parts
in these volumes are arranged in the following order: Parts 1-16; part
17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of 17.95), part 17
(17.96 to 17.99(h)), part 17 (17.99(i) to end of part 17), parts 18-199,
parts 200-599, parts 600-659 and part 660 to End. The first six volumes
(parts 1-16, part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of
17.95), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to end of part
17), and parts 18-199) contain the current regulations issued under
chapter I--United States Fish and Wildlife Service, Department of the
Interior. The seventh volume (parts 200-599) contains the current
regulations issued under chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of Commerce;
chapter III--International Fishing and Related Activities, chapter IV--
Joint Regulations (United States Fish and Wildlife Service, Department
of the Interior and National Marine Fisheries Service, National Oceanic
and Atmospheric Administration, Department of Commerce); Endangered
Species Committee regulations; and chapter V--Marine Mammal Commission.
The eighth and ninth volumes (parts 600-659 and part 660 to End) contain
the current regulations issued under chapter VI--Fishery Conservation
and Management, National Oceanic and Atmospheric Administration,
Department of Commerce. The contents of these volumes represent all
current regulations codified under this title of the CFR as of October
1, 2008.
Alphabetical listings of endangered and threatened wildlife and
plants appear in Sec. Sec. 17.11 and 17.12.
The OMB control numbers for the National Oceanic and Atmospheric
Administration appear in 15 CFR 902.1.
For this volume, Jonn V. Lilyea was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 200 to 599)
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Part
chapter ii--National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 216
chapter iii--International Fishing and Related Activities... 300
chapter iv--Joint Regulations (United States Fish and
Wildlife Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered
Species Committee Regulations............................. 401
chapter v--Marine Mammal Commission......................... 501
[[Page 3]]
CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
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SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
Part Page
216 Regulations governing the taking and
importing of marine mammals............. 5
217-220 [Reserved]
221 Prescriptions in FERC Hydropower Licenses... 99
222 General endangered and threatened marine
species................................. 119
223 Threatened marine and anadromous species.... 144
224 Endangered marine and anadromous species.... 221
225 [Reserved]
226 Designated critical habitat................. 224
228 Notice and hearing on section 103(d)
regulations............................. 636
229 Authorization for commercial fisheries under
the Marine Mammal Protection Act of 1972 643
SUBCHAPTER D--WHALING
230 Whaling provisions.......................... 692
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
SUBCHAPTER F--AID TO FISHERIES
253 Fisheries assistance programs............... 695
259 Capital construction fund................... 704
SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF,
AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260 Inspection and certification................ 716
[[Page 4]]
261 United States Standards for Grades.......... 746
SUBCHAPTER H--FISH AND SEAFOOD PROMOTION
270 Species-specific Seafood Marketing Councils. 488
SUBCHAPTERS I-J [RESERVED]
SUBCHAPTER K--CONTINENTAL SHELF
296 Fishermen's Contingency Fund................ 760
[[Page 5]]
SUBCHAPTER A_GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C_MARINE MAMMALS
PART 216_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS--Table of Contents
Subpart A_Introduction
Sec.
216.1 Purpose of regulations.
216.2 Scope of regulations.
216.3 Definitions.
216.4 Other laws and regulations.
216.5 Payment of penalty.
216.6 Forfeiture and return of seized property.
216.7 Holding and bonding.
216.8 Enforcement officers.
Subpart B_Prohibitions
216.11 Prohibited taking.
216.12 Prohibited importation.
216.13 Prohibited uses, possession, transportation, sales, and permits.
216.14 Marine mammals taken before the MMPA.
216.15 Depleted species.
216.16 Prohibitions under the General Authorization for Level B
harassment for scientific research.
216.17 General prohibitions.
Subpart C_General Exceptions
216.21 Actions permitted by international treaty, convention, or
agreement.
216.22 Taking by State or local government officials.
216.23 Native exceptions.
216.24 Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical
Pacific Ocean.
216.25 Exempted marine mammals and marine mammal products.
216.26 Collection of certain marine mammal parts without prior
authorization.
216.27 Release, non-releasability, and disposition under special
exception permits for rehabilitated marine mammals.
Subpart D_Special Exceptions
216.30 [Reserved]
216.31 Definitions.
216.32 Scope.
216.33 Permit application submission, review, and decision procedures.
216.34 Issuance criteria.
216.35 Permit restrictions.
216.36 Permit conditions.
216.37 Marine mammal parts.
216.38 Reporting.
216.39 Permit amendments.
216.40 Penalties and permit sanctions.
216.41 Permits for scientific research and enhancement.
216.42 Photography. [Reserved]
216.43 Public display. [Reserved]
216.44 Applicability/transition.
216.45 General Authorization for Level B harassment for scientific
research.
216.46 U.S. citizens on foreign flag vessels operating under the
International Dolphin Conservation Program.
216.47 Access to marine mammal tissue, analyses, and data.
216.48-216.49 [Reserved]
Subpart E_Designated Ports
216.50 Importation at designated ports.
Subpart F_Pribilof Islands, Taking for Subsistence Purposes
216.71 Allowable take of fur seals.
216.72 Restrictions on taking.
216.73 Disposition of fur seal parts.
216.74 Cooperation with Federal officials.
Subpart G_Pribilof Islands Administration
216.81 Visits to fur seal rookeries.
216.82 Dogs prohibited.
216.83 Importation of birds or mammals.
216.84 [Reserved]
216.85 Walrus and Otter Islands.
216.86 Local regulations.
216.87 Wildlife research.
Subpart H_Dolphin Safe Tuna Labeling
216.90 Purposes.
216.91 Dolphin-safe labeling standards.
216.92 Dolphin-safe requirements for tuna harvested in the ETP by large
purse seine vessels.
216.93 Tracking and verification program.
216.94 False statements or endorsements.
216.95 Official mark for ``Dolphin-safe'' tuna products.
Subpart I_General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
216.101 Purpose.
[[Page 6]]
216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of Authorization.
216.107 Incidental harassment authorization for Arctic waters.
216.108 Requirements for monitoring and reporting under incidental
harassment authorizations for Arctic waters.
Subpart J_Taking Marine Mammals Incidental to Coastal Commercial
Fireworks Displays at Monterey Bay National Marine Sanctuary, California
216.110 Specified activity and specified geographical region.
216.111 Effective dates.
216.112 Permissible methods of taking.
216.113 Prohibitions.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Letters of Authorization.
216.118 Renewal of Letters of Authorization.
216.119 Modifications to Letters of Authorization.
Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test
Flight Activities
216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Renewal of Letters of Authorization.
216.128 Modifications of Letters of Authorization.
Subparts L-M [Reserved]
Subpart N_Taking of Marine Mammals Incidental to Missile Launch
Operations from San Nicolas Island, CA
216.151 Specified activity, geographical region, and incidental take
levels.
216.152 Effective dates.
216.153 Permissible methods of taking; mitigation.
216.154 Prohibitions.
216.155 Requirements for monitoring and reporting.
216.156 Letter of Authorization.
216.157 Renewal of the Letter of Authorization.
216.158 Modifications to the Letter of Authorization.
Subpart O_Taking of Marine Mammals Incidental to Shock Testing the USS
MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the
Offshore Waters of the U.S. Atlantic Coast
216.161 Specified activity and incidental take levels by species.
216.162 Effective dates.
216.163 Mitigation.
216.164 Prohibitions.
216.165 Requirements for monitoring and reporting.
216.166 Modifications to the Letter of Authorization.
Subpart P [Reserved]
Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA
sonar) Sonar
216.180 Specified activity.
216.181 Effective dates.
216.182 Permissible methods of taking.
216.183 Prohibitions.
216.184 Mitigation.
216.185 Requirements for monitoring.
216.186 Requirements for reporting.
216.187 Applications for Letters of Authorization.
216.188 Letters of Authorization.
216.189 Renewal of Letters of Authorization.
216.190 Modifications to Letters of Authorization.
216.191 Designation of Offshore Biologically Important Marine Mammal
Areas.
Subpart R_Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea
216.200 Specified activity and specified geographical region.
216.201 Effective dates.
216.202 Permissible methods of taking.
216.203 Prohibitions.
216.204 Mitigation.
216.205 Measures to ensure availability of species for subsistence uses.
216.206 Requirements for monitoring and reporting.
216.207 Applications for Letters of Authorization.
216.208 Letters of Authorization.
216.209 Renewal of Letters of Authorization.
216.210 Modifications to Letters of Authorization.
[[Page 7]]
Subpart S--Taking of Marine Mammals Incidental to Explosive Severance
Activities Conducted During Offshore Structure Removal Operations on the
Outer Continental Shelf in the U.S. Gulf of Mexico
216.211 Specified activity and specified geographical region.
216.212 Effective dates.
216.213 Permissible methods of taking.
216.214 Prohibitions.
216.215 Definitions, terms, and criteria.
216.216 Mitigation.
216.217 Requirements for monitoring and reporting.
216.218 Letters of Authorization.
216.219 Renewal and modifications of Letters of Authorization.
Subpart T [Reserved]
Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from
the Kodiak Launch Complex, Kodiak Island, AK
216.230 Specified activity and specified geographical region.
216.231 Effective dates.
216.232 Permissible methods of taking.
216.233 Prohibitions.
216.234 Mitigation, monitoring and reporting.
216.235 Letter of Authorization.
216.236 Renewal of a Letter of Authorization.
216.237 Modifications to a Letter of Authorization.
Subpart V [Reserved]
Subpart W_Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letters of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.
Note to part 216: See also 50 CFR parts 228 and 229 for regulations
governing certain incidental takings of marine mammals.
Subpart A_Introduction
Sec. 216.1 Purpose of regulations.
The regulations in this part implement the Marine Mammal Protection
Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361-1407, Pub. L. 92-522, which,
among other things, restricts the taking, possession, transportation,
selling, offering for sale, and importing of marine mammals.
Sec. 216.2 Scope of regulations.
This part 216 applies solely to marine mammals and marine mammal
products as defined in Sec. 216.3. For regulations under the MMPA, with
respect to other marine mammals and marine mammal products, see 50 CFR
part 18.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.3 Definitions.
In addition to definitions contained in the MMPA, and unless the
context otherwise requires, in this part 216:
Acts means, collectively, the Marine Mammal Protection Act of 1972,
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973,
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as
amended, 16 U.S.C. 1151 et seq.
Active sportfishing means paying passengers have their terminal
fishing gear (lures, hooks, etc.) in the water in an attempt to catch
fish or, in the case of fishing involving chumming, fishing is
considered to be in progress from the instant fish have been sighted
taking bait (boiling) during that chumming process.
Administrator, Southwest Region means the Regional Administrator,
Southwest Region, National Marine Fisheries Service, 501 W. Ocean Blvd.,
Suite 4200, Long Beach, CA 90802-4213, or his or her designee.
Agreement on the International Dolphin Conservation Program
(Agreement on the IDCP) means the Agreement establishing the formal
binding IDCP that was signed in Washington, DC on May 21, 1998.
[[Page 8]]
Alaskan Native means a person defined in the Alaska Native Claims
Settlement Act (43 U.S.C. 1602(b)) (85 Stat. 588) as a citizen of the
United States who is of one-fourth degree or more Alaska Indian
(including Tsimishian Indians enrolled or not enrolled in the Metlaktla
Indian Community), Eskimo, or Aleut blood or combination thereof. The
term includes any Native, as so defined, either or both of whose
adoptive parents are not Natives. It also includes, in the absence of
proof of a minimum blood quantum, any citizen of the United States who
is regarded as an Alaska Native by the Native village or group, of which
he claims to be a member and whose father or mother is (or, if deceased,
was) regarded as Native by any Native village or Native group. Any such
citizen enrolled by the Secretary of the Interior pursuant to section 5
of the Alaska Native Claims Settlement Act shall be conclusively
presumed to be an Alaskan Native for purposes of this part.
Article of handicraft means items made by an Indian, Aleut or Eskimo
from the nonedible byproducts of fur seals taken for personal or family
consumption which--
(1) Were commonly produced by Alaskan Natives on or before October
14, 1983;
(2) Are composed wholly or in some significant respect of natural
materials, and;
(3) Are significantly altered from their natural form and which are
produced, decorated, or fashioned in the exercise of traditional native
handicrafts without the use of pantographs, multiple carvers, or similar
mass copying devices. Improved methods of production utilizing modern
implements such as sewing machines or modern tanning techniques at a
tannery registered pursuant to Sec. 216.23(c) may be used so long as no
large scale mass production industry results. Traditional native
handicrafts include, but are not limited to, weaving, carving,
stitching, sewing, lacing, beading, drawing, and painting. The formation
of traditional native groups, such as a cooperative, is permitted so
long as no large scale mass production results.
Assistant Administrator means the Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Silver Spring, MD 20910, or his/her
designee.
Authentic native articles of handicrafts and clothing means items
made by an Indian, Aleut or Eskimo which (a) were commonly produced on
or before December 21, 1972, and (b) are composed wholly or in some
significant respect of natural materials, and (c) are significantly
altered from their natural form and which are produced, decorated, or
fashioned in the exercise of traditional native handicrafts without the
use of pantographs, multiple carvers, or similar mass copying devices.
Improved methods of production utilizing modern implements such as
sewing machines or modern tanning techniques at a tannery registered
pursuant to Sec. 216.23(c) may be used so long as no large scale mass
production industry results. Traditional native handicrafts include, but
are not limited to, weaving, carving, stitching, sewing, lacing,
beading, drawing, and painting. The formation of traditional native
groups, such as a cooperative, is permitted so long as no large scale
mass production results.
Bona fide scientific research: (1) Means scientific research on
marine mammals conducted by qualified personnel, the results of which:
(i) Likely would be accepted for publication in a refereed
scientific journal;
(ii) Are likely to contribute to the basic knowledge of marine
mammal biology or ecology. (Note: This includes, for example, marine
mammal parts in a properly curated, professionally accredited scientific
collection); or
(iii) Are likely to identify, evaluate, or resolve conservation
problems.
(2) Research that is not on marine mammals, but that may
incidentally take marine mammals, is not included in this definition
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA,
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
Carrying capacity means the Regional Director's determination of the
maximum amount of fish that a vessel can carry in short tons based on
the greater of the amount indicated by the
[[Page 9]]
builder of the vessel, a marine surveyor's report, or the highest amount
reported landed from any one trip.
Certified charter vessel means a fishing vessel of a non-U.S. flag
nation, which is operating under the jurisdiction of the marine mammal
laws and regulations of another, harvesting, nation by a formal
declaration entered into by mutual agreement of the nations.
Co-investigator means the on-site representative of a principal
investigator.
Commercial fishing operation means the lawful harvesting of fish
from the marine environment for profit as part of an ongoing business
enterprise. Such terms may include licensed commercial passenger fishing
vessel (as defined) activities, but no other sportfishing activities,
whether or not the fish so caught are subsequently sold.
Commercial passenger fishing vessel means any vessel licensed for
commercial passenger fishing purposes within the State out of which it
is operating and from which, while under charter or hire, persons are
legally permitted to conduct sportfishing activities.
Custody means holding a live marine mammal pursuant to the
conditional authority granted under the MMPA, and the responsibility
therein for captive maintenance of the marine mammal.
Declaration of Panama means the declaration signed in Panama City,
Republic of Panama, on October 4, 1995.
Director, Office of Protected Resources means Director, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910.
Dolphin Mortality Limit (DML) means the maximum allowable number of
incidental dolphin mortalities per calendar year assigned to a vessel,
unless a shorter time period is specified.
Endangered Species means a species or subspecies of marine mammal
listed as ``endangered'' pursuant to the Endangered Species Act of 1973,
87 Stat. 884, Pub. L. 93-205 (see part 17 of this title).
ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C.
1531 et seq.
ETP means the eastern tropical Pacific Ocean which includes the
Pacific Ocean area bounded by 40[deg] N. latitude, 40[deg] S. latitude,
160[deg] W. longitude and the coastlines of North, Central and South
America.
Facility means, in the context specific to captive marine mammals,:
(1) One or more permanent primary enclosures used to hold marine mammals
captive (i.e., pools, lagoons) and associated infrastructure (i.e.,
equipment and supplies necessary for the care and maintenance of marine
mammals) where these enclosures are either located within the boundaries
of a single contiguous parcel of land and water, or are grouped together
within the same general area within which enclosure-to-enclosure
transport is expected to be completed in less than one hour; or
(2) A traveling display/exhibit, where the enclosure(s) and
associated infrastructure is transported together with the marine
mammals.
Feeding is offering, giving, or attempting to give food or non-food
items to marine mammals in the wild. It includes operating a vessel or
providing other platforms from which feeding is conducted or supported.
It does not include the routine discard of bycatch during fishing
operations or the routine discharge of waste or fish byproducts from
fish processing plants or other platforms if the discharge is otherwise
legal and is incidental to operation of the activity.
First exporter means the person or company that first exports the
fish or fish product, or, in the case of shipments that are subject to
the labeling requirements of 50 CFR part 247 and that only contain fish
harvested by vessels of the United States, the first seller of the fish
or fish product.
Fisheries Certificate of Origin, or FCO, means NOAA Form 370, as
described in Sec. 216.24(f)(4).
Force majeure means forces outside the vessel operator's or vessel
owner's control that could not be avoided by the exercise of due care.
FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et
seq.
Fur seal means North Pacific fur seal, scientifically known as
Callorhinus ursinus.
Hard part means any bone, tooth, baleen, treated pelt, or other part
of a marine mammal that is relatively solid or durable.
[[Page 10]]
Harvesting nation means the country under whose flag one or more
fishing vessels are documented, or which has by formal declaration
agreed to assert jurisdiction over one or more certified charter
vessels, from which vessel(s) fish are caught that are a part of any
cargo or shipment of fish to be imported into the United States,
regardless of any intervening transshipments.
Humane means the method of taking, import, export, or other activity
which involves the least possible degree of pain and suffering
practicable to the animal involved.
Import means to land on, bring into, or introduce into, or attempt
to land on, bring into, or introduce into, any place subject to the
jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the Customs
laws of the United States; except that, for the purpose of any ban
issued under 16 U.S.C. 1371(a)(2) on the importation of fish or fish
products, the definition of ``import'' in Sec. 216.24(f)(1)(ii) shall
apply.
Incidental catch means the taking of a marine mammal (1) because it
is directly interfering with commercial fishing operations, or (2) as a
consequence of the steps used to secure the fish in connection with
commercial fishing operations: Provided, That a marine mammal so taken
must immediately be returned to the sea with a minimum of injury and
further, that the taking of a marine mammal, which otherwise meets the
requirements of this definition shall not be considered an incidental
catch of that mammal if it is used subsequently to assist in commercial
fishing operations.
Intentional purse seine set means that a tuna purse seine vessel or
associated vessels chase marine mammals and subsequently make a purse
seine set.
International Dolphin Conservation Program (IDCP) means the
international program established by the agreement signed in La Jolla,
California, in June 1992, as formalized, modified, and enhanced in
accordance with the Declaration of Panama and the Agreement on the IDCP.
International Dolphin Conservation Program Act (IDCPA) means Public
Law 105-42, enacted into law on August 15, 1997.
International Review Panel (IRP) means the International Review
Panel established by the Agreement on the IDCP.
Intrusive research means a procedure conducted for bona fide
scientific research involving: A break in or cutting of the skin or
equivalent, insertion of an instrument or material into an orifice,
introduction of a substance or object into the animal's immediate
environment that is likely either to be ingested or to contact and
directly affect animal tissues (i.e., chemical substances), or a
stimulus directed at animals that may involve a risk to health or
welfare or that may have an impact on normal function or behavior (i.e.,
audio broadcasts directed at animals that may affect behavior). For
captive animals, this definition does not include:
(1) A procedure conducted by the professional staff of the holding
facility or an attending veterinarian for purposes of animal husbandry,
care, maintenance, or treatment, or a routine medical procedure that, in
the reasonable judgment of the attending veterinarian, would not
constitute a risk to the health or welfare of the captive animal; or
(2) A procedure involving either the introduction of a substance or
object (i.e., as described in this definition) or a stimulus directed at
animals that, in the reasonable judgment of the attending veterinarian,
would not involve a risk to the health or welfare of the captive animal.
Label means a display of written, printed, or graphic matter on or
affixed to the immediate container of any article.
Land or landing means to begin offloading any fish, to arrive in
port with the intention of offloading fish, or to cause any fish to be
offloaded.
Large-scale driftnet means a gillnet that is composed of a panel or
panels of webbing, or a series of such gillnets, with a total length of
2.5 kilometers or more that is used on the high seas and allowed to
drift with the currents and winds for the purpose of harvesting fish by
entangling the fish in the webbing of the net.
[[Page 11]]
Level A Harassment means any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal stock
in the wild.
Level B Harassment means any act of pursuit, torment, or annoyance
which has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering but which does not have the potential to injure a
marine mammal or marine mammal stock in the wild.
Marine environment means the oceans and the seas, including
estuarine and brackish waters.
Marine mammal means those specimens of the following orders, which
are morphologically adapted to the marine environment, and whether alive
or dead, and any part thereof, including but not limited to, any raw,
dressed or dyed fur or skin: Cetacea (whales, dolphins, and porpoises)
and Pinnipedia, other than walrus (seals and sea lions).
MMPA means the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1361 et seq.
Native village or town means any community, association, tribe,
band, clan or group.
Optimum sustainable population is a population size which falls
within a range from the population level of a given species or stock
which is the largest supportable within the ecosystem to the population
level that results in maximum net productivity. Maximum net productivity
is the greatest net annual increment in population numbers or biomass
resulting from additions to the population due to reproduction and/or
growth less losses due to natural mortality.
Per-stock per-year dolphin mortality limit means the maximum
allowable number of incidental dolphin mortalities and serious injuries
from a specified stock per calendar year, as established under the IDCP.
Pregnant means pregnant near term.
Pribilovians means Indians, Aleuts, and Eskimos who live on the
Pribilof Islands.
Principal investigator means the individual primarily responsible
for the taking, importation, export, and any related activities
conducted under a permit issued for scientific research or enhancement
purposes.
Public display means an activity that provides opportunities for the
public to view living marine mammals at a facility holding marine
mammals captive.
Regional Director means the Regional Administrator, Northeast
Regional Office, NMFS, One Blackburn Drive, Gloucester, MA 01930; or
Regional Administrator, Northwest Regional Office, NMFS, 7600 Sandpoint
Way, N.E., Building 1, Seattle, WA 98115; or Regional Administrator,
Southeast Regional Office, NMFS, 9721 Executive Center Drive North, St.
Petersburg, FL 33702; or Regional Administrator, Southwest Regional
Office, NMFS, 501 West Ocean Boulevard, Suite 4200, Long Beach, CA
90802; or Regional Administrator, Pacific Islands Regional Office, NMFS,
1601 Kapiolani Boulevard, Suite 1110, Honolulu, HI 96814; or Regional
Administrator, Alaska Regional Office, NMFS, PO Box 21668, Juneau, AK
99802.
Rehabilitation means treatment of beached and stranded marine
mammals taken under section 109(h)(1) of the MMPA or imported under
section 109(h)(2) of the MMPA, with the intent of restoring the marine
mammal's health and, if necessary, behavioral patterns.
Secretary shall mean the Secretary of Commerce or his authorized
representative.
Serious injury means any injury that will likely result in
mortality.
Sexual harassment means any unwelcome sexual advance, request for
sexual favors, or other verbal and physical conduct of a sexual nature
which has the purpose or effect of substantially interfering with an
individual's work performance or creating an intimidating, hostile, or
offensive working environment.
Soft part means any marine mammal part that is not a hard part. Soft
parts do not include urine or fecal material.
South Pacific Ocean means any waters of the Pacific Ocean that lie
south of the equator.
South Pacific Tuna Treaty means the Treaty on Fisheries Between the
Governments of Certain Pacific Island States and the Government of the
[[Page 12]]
United States of America (50 CFR part 300, subpart D).
Stranded or stranded marine mammal means a marine mammal specimen
under the jurisdiction of the Secretary:
(1) If the specimen is dead, and is on a beach or shore, or is in
the water within the Exclusive Economic Zone of the United States; or
(2) If the specimen is alive, and is on a beach or shore and is
unable to return to the water, or is in the water within the Exclusive
Economic Zone of the United States where the water is so shallow that
the specimen is unable to return to its natural habitat under its own
power.
Subsistence means the use of marine mammals taken by Alaskan Natives
for food, clothing, shelter, heating, transportation, and other uses
necessary to maintain the life of the taker or those who depend upon the
taker to provide them with such subsistence.
Subsistence uses means the customary and traditional uses of fur
seals taken by Pribilovians for direct personal or family consumption as
food, shelter, fuel, clothing, tools or transportation; for the making
and selling of handicraft articles out of nonedible byproducts of fur
seals taken for personal or family consumption; and for barter, or
sharing for personal or family consumption. As used in this definition--
(1) Family means all persons related by blood, marriage, or
adoption, or any person living within a household on a permanent basis.
(2) Barter means the exchange of fur seals or their parts, taken for
subsistence uses--
(i) For other wildlife or fish or their parts, or
(ii) For other food or for nonedible items other than money if the
exchange is of a limited and noncommercial nature.
Take means to harass, hunt, capture, collect, or kill, or attempt to
harass, hunt, capture, collect, or kill any marine mammal. This
includes, without limitation, any of the following: The collection of
dead animals, or parts thereof; the restraint or detention of a marine
mammal, no matter how temporary; tagging a marine mammal; the negligent
or intentional operation of an aircraft or vessel, or the doing of any
other negligent or intentional act which results in disturbing or
molesting a marine mammal; and feeding or attempting to feed a marine
mammal in the wild.
Threatened species means a species of marine mammal listed as
``threatened'' pursuant to the Endangered Species Act of 1973, 87 Stat.
884, Pub. L. 93-205.
Trip means a voyage starting when a vessel leaves port with all fish
wells empty of fish and ending when a vessel unloads all of its fish.
Tuna product means any food product processed for retail sale and
intended for human or animal consumption that contains an item listed in
Sec. 216.24(f)(2)(i) or (ii), but does not include perishable items
with a shelf life of less than 3 days.
Wasteful manner means any taking or method of taking which is likely
to result in the killing of marine mammals beyond those needed for
subsistence, subsistence uses, or for the making of authentic native
articles of handicrafts and clothing, or which results in the waste of a
substantial portion of the marine mammal and includes, without
limitation, the employment of a method of taking which is not likely to
assure the capture or killing of a marine mammal, or which is not
immediately followed by a reasonable effort to retrieve the marine
mammal.
[39 FR 1852, Jan. 15, 1974]
Editorial Note: For Federal Register citations affecting Sec.
216.3, see the List of Sections Affected, which appears in the Finding
Aids section of the printed volume and on GPO Access.
Sec. 216.4 Other laws and regulations.
(a) Federal. Nothing in this part, nor any permit issued under
authority of this part, shall be construed to relieve a person from any
other requirements imposed by a statute or regulation of the United
States, including any applicable statutes or regulations relating to
wildlife and fisheries, health, quarantine, agriculture, or customs.
(b) State laws or regulations. See part 403 of this chapter.
[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58
FR 65134, Dec. 13, 1993]
[[Page 13]]
Sec. 216.5 Payment of penalty.
The respondent shall have 30 days from receipt of the final
assessment decision within which to pay the penalty assessed. Upon a
failure to pay the penalty, the Secretary may request the Attorney
General to institute a civil action in the appropriate United States
District Court to collect the penalty.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981]
Sec. 216.6 Forfeiture and return of seized property.
(a) Whenever any cargo or marine mammal or marine mammal product has
been seized pursuant to section 107 of the MMPA, the Secretary shall
expedite any proceedings commenced under these regulations.
(b) Whenever a civil penalty has been assessed by the Secretary
under these regulations, any cargo, marine mammal, or marine mammal
product seized pursuant to section 107 of the MMPA shall be subject to
forfeiture. If respondent voluntarily forfeits any such seized property
or the monetary value thereof without court proceedings, the Secretary
may apply the value thereof, if any, as determined by the Secretary,
toward payment of the civil penalty.
(c) Whenever a civil penalty has been assessed under these
regulations, and whether or not such penalty has been paid, the
Secretary may request the Attorney General to institute a civil action
in an appropriate United States District Court to compel forfeiture of
such seized property or the monetary value thereof to the Secretary for
disposition by him in such manner as he deems appropriate. If no
judicial action to compel forfeiture is commenced within 30 days after
final decision-making assessment of a civil penalty, pursuant to Sec.
216.60, such seized property shall immediately be returned to the
respondent.
(d) If the final decision of the Secretary under these regulations
is that respondent has committed no violation of the MMPA or of any
permit or regulations issued thereunder, any marine mammal, marine
mammal product, or other cargo seized from respondent in connection with
the proceedings under these regulations, or the bond or other monetary
value substituted therefor, shall immediately be returned to the
respondent.
(e) If the Attorney General commences criminal proceedings pursuant
to section 105(b) of the MMPA, and such proceedings result in a finding
that the person accused is not guilty of a criminal violation of the
MMPA, the Secretary may institute proceedings for the assessment of a
civil penalty under this part: Provided, That if no such civil penalty
proceedings have been commenced by the Secretary within 30 days
following the final disposition of the criminal case, any property
seized pursuant to section 107 of the MMPA shall be returned to the
respondent.
(f) If any seized property is to be returned to the respondent, the
Regional Director shall issue a letter authorizing such return. This
letter shall be dispatched to the respondent by registered mail, return
receipt requested, and shall identify the respondent, the seized
property, and, if appropriate, the bailee of the seized property. It
shall also provide that upon presentation of the letter and proper
identification, the seized property is authorized to be released. All
charges for storage, care, or handling of the seized property accruing 5
days or more after the date of the return receipt shall be for the
account of the respondent: Provided, That if it is the final decision of
the Secretary under these regulations that the respondent has committed
the alleged violation, all charges which have accrued for the storage,
care, or handling of the seized property shall be for the account of the
respondent.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.7 Holding and bonding.
(a) Any marine mammal, marine mammal product, or other cargo seized
pursuant to section 107 of the MMPA shall be delivered to the
appropriate Regional Director of the National Marine Fisheries Service
(see Sec. 201.2 of this title) or his designee, who shall either hold
such seized property or arrange for the proper handling and care of such
seized property.
[[Page 14]]
(b) Any arrangement for the handling and care of seized property
shall be in writing and shall state the compensation to be paid. Subpart
F of 15 CFR part 904 contains additional procedures that govern seized
property that is subject to forfeiture or has been forfeited under the
MMPA.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 50 FR 12785, Apr. 1, 1985; 59 FR 50375, Oct. 3, 1994]
Sec. 216.8 Enforcement officers.
Enforcement Agents of the National Marine Fisheries Service shall
enforce the provisions of the MMPA and may take any actions authorized
by the MMPA with respect to enforcement. In addition, the Secretary may
utilize, by agreement, the personnel, services, and facilities of any
other Federal Agency for the purposes of enforcing this MMPA. Pursuant
to the terms of section 107(b) of the MMPA, the Secretary may also
designate officers and employees of any State or of any possession of
the United States to enforce the provisions of this MMPA.
[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981,
and amended at 59 FR 50375, Oct. 3, 1994]
Subpart B_Prohibitions
Sec. 216.11 Prohibited taking.
Except as otherwise provided in subparts C, D, and I of this part
216 or in part 228 or 229, it is unlawful for:
(a) Any person, vessel, or conveyance subject to the jurisdiction of
the United States to take any marine mammal on the high seas, or
(b) Any person, vessel, or conveyance to take any marine mammal in
waters or on lands under the jurisdiction of the United States, or
(c) Any person subject to the jurisdiction of the United States to
take any marine mammal during the moratorium.
[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54
FR 21921, May 19, 1989]
Sec. 216.12 Prohibited importation.
(a) Except as otherwise provided in subparts C and D of this part
216, it is unlawful for any person to import any marine mammal or marine
mammal product into the United States.
(b) Regardless of whether an importation is otherwise authorized
pursuant to subparts C and D of this part 216, it is unlawful for any
person to import into the United States any:
(1) Marine mammal:
(i) Taken in violation of the MMPA, or
(ii) Taken in another country in violation to the laws of that
country;
(2) Any marine mammal product if
(i) The importation into the United States of the marine mammal from
which such product is made would be unlawful under paragraph (b)(1) of
this section, or
(ii) The sale in commerce of such product in the country of origin
if the product is illegal.
(c) Except in accordance with an exception referred to in subpart C
and Sec. Sec. 216.31 (regarding scientific research permits only) and
216.32 of this part 216, it is unlawful to import into the United States
any:
(1) Marine mammal which was pregnant at the time of taking.
(2) Marine mammal which was nursing at the time of taking, or less
than 8 months old, whichever occurs later.
(3) Specimen of an endangered or threatened species of marine
mammal.
(4) Specimen taken from a depleted species or stock of marine
mammals, or
(5) Marine mammal taken in an inhumane manner.
(d) It is unlawful to import into the United States any fish,
whether fresh, frozen, or otherwise prepared, if such fish was caught in
a manner proscribed by the Secretary of Commerce for persons subject to
the jurisdiction of the United States, whether or not any marine mammals
were in fact taken incident to the catching of the fish.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]
Sec. 216.13 Prohibited uses, possession, transportation, sales,
and permits.
It is unlawful for:
[[Page 15]]
(a) Any person to use any port, harbor or other place under the
jurisdiction of the United States for any purpose in any way connected
with a prohibited taking or an unlawful importation of any marine mammal
or marine mammal product; or
(b) Any person subject to the jurisdiction of the United States to
possess any marine mammal taken in violation of the MMPA or these
regulations, or to transport, sell, or offer for sale any such marine
mammal or any marine mammal product made from any such mammal.
(c) Any person subject to the jurisdiction of the United States to
use in a commercial fishery, any means or method of fishing in
contravention of regulations and limitations issued by the Secretary of
Commerce for that fishery to achieve the purposes of this MMPA.
(d) Any person to violate any term, condition, or restriction of any
permit issued by the Secretary.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3,
1994; 61 FR 21933, May 10, 1996]
Sec. 216.14 Marine mammals taken before the MMPA.
(a) Section 102(e) of the MMPA provides, in effect, that the MMPA
shall not apply to any marine mammal taken prior to December 21, 1972,
or to any marine mammal product, consisting of or composed in whole or
in part of, any marine mammal taken before that date. This prior status
of any marine mammal or marine mammal product may be established by
submitting to the Director, National Marine Fisheries Service prior to,
or at the time of importation, an affidavit containing the following:
(1) The Affiant's name and address;
(2) Identification of the Affiant;
(3) A description of the marine mammals or marine mammal products
which the Affiant desires to import;
(4) A statement by the Affiant that, to the best of his knowledge
and belief, the marine mammals involved in the application were taken
prior to December 21, 1972;
(5) A statement by the Affiant in the following language:
The foregoing is principally based on the attached exhibits which,
to the best of my knowledge and belief, are complete, true and correct.
I understand that this affidavit is being submitted for the purpose of
inducing the Federal Government to permit the importation of--under the
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and
regulations promulgated thereunder, and that any false statements may
subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties
under the Marine Mammal Protection Act of 1972.
(b) Either one of two exhibits shall be attached to such affidavit,
and will contain either:
(1) Records or other available evidence showing that the product
consists of or is composed in whole or in part of marine mammals taken
prior to the effective date of the MMPA. Such records or other
evidentiary material must include information on how, when, where, and
by whom the animals were taken, what processing has taken place since
taking, and the date and location of such processing; or
(2) A statement from a government agency of the country of origin
exercising jurisdiction over marine mammals that any and all such
mammals from which the products sought to be imported were derived were
taken prior to December 21, 1972.
(c) No pre-Act marine mammal or pre-Act marine mammal product may be
imported unless the requirements of this section have been fulfilled.
(d) This section has no application to any marine mammal or marine
mammal product intended to be imported pursuant to Sec. Sec. 216.21,
216.31 or Sec. 216.32.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3,
1994]
Sec. 216.15 Depleted species.
The following species or population stocks have been designated by
the Assistant Administrator as depleted under the provisions of the
MMPA.
(a) Hawaiian monk seal (Monachus schauinslandi).
(b) Bowhead whale (Balaena mysticetus).
(c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island
population.
(d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock
along the U.S. mid-Atlantic coast.
[[Page 16]]
(e) Eastern spinner dolphin (Stenella longirostris orientalis).
(f) Northeastern offshore spotted dolphin (Stenella attenuata).
(g) Cook Inlet, Alaska, stock of beluga whales (Delphinapterus
leucas). The stock includes all beluga whales occurring in waters of the
Gulf of Alaska north of 58[deg] North latitude including, but not
limited to, Cook Inlet, Kamishak Bay, Chinitna Bay, Tuxedni Bay, Prince
William Sound, Yakutat Bay, Shelikof Strait, and off Kodiak Island and
freshwater tributaries to these waters.
(h) Eastern North Pacific Southern Resident stock of killer whales
(Orcinus orca). The stock includes all resident killer whales in pods J,
K, and L in the waters of, but not limited to, the inland waterways of
southern British Columbia and Washington, including the Georgia Strait,
the Strait of Juan de Fuca, and Puget Sound.
(i) AT1 stock of killer whales (Orcinus orca). The stock includes
all killer whales belonging to the AT1 group of transient killer whales
occurring primarily in waters of Prince William Sound, Resurrection Bay,
and the Kenai Fjords region of Alaska.
[53 FR 17899, May 18, 1988, as amended at 58 FR 17791, Apr. 6, 1993; 58
FR 45074, Aug. 26, 1993; 58 FR 58297, Nov. 1, 1993; 59 FR 50376, Oct. 3,
1994; 65 FR 34597, May 31, 2000; 68 FR 31983, May 29, 2003; 69 FR 31324,
June 3, 2004]
Sec. 216.16 Prohibitions under the General Authorization for Level B
harassment for scientific research.
It shall be unlawful for any person to:
(a) Provide false information in a letter of intent submitted
pursuant to Sec. 216.45(b);
(b) Violate any term or condition imposed pursuant to Sec.
216.45(d).
[59 FR 50376, Oct. 3, 1994]
Sec. 216.17 General prohibitions.
It is unlawful for any person to:
(a) Assault, resist, oppose, impede, intimidate, threaten, or
interfere with any authorized officer in the conduct of any search,
inspection, investigation or seizure in connection with enforcement of
the MMPA, DPCIA, or IDCPA.
(b) Interfere with, delay, or prevent by any means the apprehension
of another person, knowing that such person has committed any act
prohibited by the MMPA.
(c) Resist a lawful arrest for any act prohibited under the MMPA.
(d) Make any false statement, oral or written, to an authorized
officer concerning any act under the jurisdiction of the MMPA, DPCIA,
IDCPA, or attempt to do any of the above.
(e) Interfere with, obstruct, delay, or prevent by any means an
investigation, search, seizure, or disposition of seized property in
connection with enforcement of the MMPA, DPCIA, or IDCPA.
[70 FR 19008, Apr. 12, 2005]
Subpart C_General Exceptions
Sec. 216.21 Actions permitted by international treaty, convention,
or agreement.
The MMPA and these regulations shall not apply to the extent that
they are inconsistent with the provisions of any international treaty,
convention or agreement, or any statute implementing the same relating
to the taking or importation of marine mammals or marine mammal
products, which was existing and in force prior to December 21, 1972,
and to which the United States was a party. Specifically, the
regulations in subpart B of this part and the provisions of the MMPA
shall not apply to activities carried out pursuant to the Interim
Convention on the Conservation of North Pacific Fur Seals signed at
Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C.
1151 through 1187, as in each case, from time to time amended.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]
Sec. 216.22 Taking by State or local government officials.
(a) A State or local government official or employee may take a
marine mammal in the normal course of his duties as an official or
employee, and no permit shall be required, if such taking:
(1) Is accomplished in a humane manner;
[[Page 17]]
(2) Is for the protection or welfare of such mammal or for the
protection of the public health or welfare; and
(3) Includes steps designed to insure return of such mammal, if not
killed in the course of such taking, to its natural habitat. In
addition, any such official or employee may, incidental to such taking,
possess and transport, but not sell or offer for sale, such mammal and
use any port, harbor, or other place under the jurisdiction of the
United States. All steps reasonably practicable under the circumstances
shall be taken by any such employee or official to prevent injury or
death to the marine mammal as the result of such taking. Where the
marine mammal in question is injured or sick, it shall be permissible to
place it in temporary captivity until such time as it is able to be
returned to its natural habitat. It shall be permissible to dispose of a
carcass of a marine mammal taken in accordance with this subsection
whether the animal is dead at the time of taking or dies subsequent
thereto.
(b) Each taking permitted under this section shall be included in a
written report to be submitted to the Secretary every six months
beginning December 31, 1973. Unless otherwise permitted by the
Secretary, the report shall contain a description of:
(1) The animal involved;
(2) The circumstances requiring the taking;
(3) The method of taking;
(4) The name and official position of the State official or employee
involved;
(5) The disposition of the animal, including in cases where the
animal has been retained in captivity, a description of the place and
means of confinement and the measures taken for its maintenance and
care; and
(6) Such other information as the Secretary may require.
(c) Salvage of dead stranded marine mammals or parts therefrom and
subsequent transfer.
(1) Salvage. In the performance of official duties, a state or local
government employee; an employee of the National Marine Fisheries
Service, the U.S. Fish and Wildlife Service, or any other Federal agency
with jurisdiction and conservation responsibilities in marine shoreline
areas; or a person authorized under 16 U.S.C. 1382(c) may take and
salvage a marine mammal specimen if it is stranded and dead or it was
stranded or rescued and died during treatment, transport, captivity or
other rehabilitation subsequent to that stranding or distress if salvage
is for the purpose of utilization in scientific research or for the
purpose of maintenance in a properly curated, professionally accredited
scientific collection.
(2) Registration. A person salvaging a dead marine mammal specimen
under this section must register the salvage of the specimen with the
appropriate Regional Office of the National Marine Fisheries Service
within 30 days after the taking or death occurs. The registration must
include:
(i) The name, address, and any official position of the individual
engaged in the taking and salvage;
(ii) A description of the marine mammal specimen salvaged including
the scientific and common names of the species;
(iii) A description of the parts salvaged;
(iv) The date and the location of the taking;
(v) Such other information as deemed necessary by the Assistant
Administrator.
(3) Identification and curation. The Regional Director will assign a
single unique number to each carcass, and the parts thereof, that are
salvaged under the provisions of this section. The person who salvaged
the specimen may designate the number to be assigned. After this number
is assigned, the person who salvaged the specimen must permanently mark
that number on each separate hard part of that specimen and must affix
that number with tags or labels to each soft part of that specimen or
the containers in which that soft part is kept. Each specimen salvaged
under this section must be curated in accordance with professional
standards.
(4) No sale or commercial trade. No person may sell or trade for
commercial purposes any marine mammal specimen salvaged under this
section.
(5) Transfer without prior authorization. A person who salvages a
marine mammal specimen under this section
[[Page 18]]
may transfer that specimen to another person if:
(i) The person transferring the marine mammal specimen does not
receive remuneration for the specimen;
(ii) The person receiving the marine mammal specimen is an employee
of the National Marine Fisheries Service, the U.S. Fish and Wildlife
Service, or any other Federal agency with jurisdiction and conservation
responsibilities in marine shoreline areas; is a person authorized under
16 U.S.C. 1382(c); or is a person who has received prior authorization
under paragraph (c)(6) of this section;
(iii) The marine mammal specimen is transferred for the purpose of
scientific research, for the purpose of maintenance in a properly
curated, professionally accredited scientific collection, or for
educational purposes;
(iv) The unique number assigned by the National Marine Fisheries
Service is on, marked on, or affixed to the marine mammal specimen or
container; and
(v) Except as provided under paragraph (c)(8) of this section, the
person transferring the marine mammal specimen notifies the appropriate
Regional Office of the National Marine Fisheries Service of the
transfer, including notification of the number of the specimen
transferred and the person to whom the specimen was transferred, within
30 days after the transfer occurs.
(6) Other transfers within the United States. Except as provided
under paragraphs (c)(5) and (c)(8) of this section, a person who
salvages a marine mammal specimen, or who has received a marine mammal
specimen under the provisions of this section, may not transfer that
specimen to another person within the United States unless the Regional
Director of the appropriate Regional Office of the National Marine
Fisheries Service grants prior written authorization for the transfer.
The Regional Director may grant authorization for the transfer if there
is evidence that the conditions listed under paragraphs (c)(5)(i),
(c)(5)(iii), and (c)(5)(iv) of this section are met.
(7) Tranfers outside of the United States. A person who salvages a
marine mammal specimen, or a person who has received a marine mammal
specimen under the provisions of this section, may not transfer that
specimen to a person outside of the United States unless the Assistant
Administrator grants prior written authorization for the transfer. The
Assistant Administrator may grant authorization for the transfer if
there is evidence that the conditions listed under paragraphs (c)(5)(i),
(c)(5)(iii), and (c)(5)(iv) of this section are met.
(8) Exceptions to requirements for notification or prior
authorization. A person may transfer a marine mammal specimen salvaged
under this section without the notification required in paragraph
(c)(5)(v) of this section or the prior authorization required in
paragraph (c)(6) of this section if:
(i) The transfer is a temporary transfer to a laboratory or research
facility within the United States so that analyses can be performed for
the person salvaging the specimen; or
(ii) The transfer is a loan of not more than 1 year to another
professionally accredited scientific collection within the United
States.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 41307, Aug. 20, 1991]
Sec. 216.23 Native exceptions.
(a) Taking. Notwithstanding the prohibitions of subpart B of this
part 216, but subject to the restrictions contained in this section, any
Indian, Aleut, or Eskimo who resides on the coast of the North Pacific
Ocean or the Arctic Ocean may take any marine mammal without a permit,
if such taking is:
(1) By Alaskan Natives who reside in Alaska for subsistence, or
(2) For purposes of creating and selling authentic native articles
of handicraft and clothing, and
(3) In each case, not accomplished in a wasteful manner.
(b) Restrictions. (1) No marine mammal taken for subsistence may be
sold or otherwise transferred to any person other than an Alaskan Native
or delivered, carried, transported, or shipped in interstate or foreign
commerce, unless:
(i) It is being sent by an Alaskan Native directly or through a
registered agent to a tannery registered under paragraph (c) of this
section for the
[[Page 19]]
purpose of processing, and will be returned directly or through a
registered agent to the Alaskan Native; or
(ii) It is sold or transferred to a registered agent in Alaska for
resale or transfer to an Alaskan Native; or
(iii) It is an edible portion and it is sold in an Alaskan Native
village or town.
(2) No marine mammal taken for purposes of creating and selling
authentic native articles of handicraft and clothing may be sold or
otherwise transferred to any person other than an Indian, Aleut or
Eskimo, or delivered, carried, transported or shipped in interstate or
foreign commerce, unless:
(i) It is being sent by an Indian, Aleut or Eskimo directly or
through a registered agent to a tannery registered under paragraph (c)
of this section for the purpose of processing, and will be returned
directly or through a registered agent to the Indian, Aleut or Eskimo;
or
(ii) It is sold or transferred to a registered agent for resale or
transfer to an Indian, Aleut, or Eskimo; or
(iii) It has first been transformed into an authentic native article
of handicraft or clothing; or
(iv) It is an edible portion and sold (A) in an Alaskan Native
village or town, or (B) to an Alaskan Native for his consumption.
(c) Any tannery, or person who wishes to act as an agent, within the
jurisdiction of the United States may apply to the Director, National
Marine Fisheries Service, U.S. Department of Commerce, Washington, DC
20235, for registration as a tannery or an agent which may possess and
process marine mammal products for Indians, Aleuts, or Eskimos. The
application shall include the following information:
(i) The name and address of the applicant;
(ii) A description of the applicant's procedures for receiving,
storing, processing, and shipping materials;
(iii) A proposal for a system of bookkeeping and/or inventory
segregation by which the applicant could maintain accurate records of
marine mammals received from Indians, Aleuts, or Eskimos pursuant to
this section;
(iv) Such other information as the Secretary may request;
(v) A certification in the following language:
I hereby certify that the foregoing information is complete, true
and correct to the best of my knowledge and belief. I understand that
this information is submitted for the purpose of obtaining the benefit
of an exception under the Marine Mammal Protection Act of 1972 (16
U.S.C. 1361 through 1407) and regulations promulgated thereunder, and
that any false statement may subject me to the criminal penalties of 18
U.S.C. 1001, or to penalties under the Marine Mammal Protection Act of
1972.
(vi) The signature of the applicant.
The sufficiency of the application shall be determined by the Secretary,
and in that connection, he may waive any requirement for information, or
require any elaboration or further information deemed necessary. The
registration of a tannery or other agent shall be subject to such
conditions as the Secretary prescribes, which may include, but are not
limited to, provisions regarding records, inventory segregation,
reports, and inspection. The Secretary may charge a reasonable fee for
processing such applications, including an appropriate apportionment of
overhead and administrative expenses of the Department of Commerce.
(d) Notwithstanding the preceding provisions of this section,
whenever, under the MMPA, the Secretary determines any species of stock
of marine mammals to be depleted, he may prescribe regulations pursuant
to section 103 of the MMPA upon the taking of such marine animals by any
Indian, Aleut, or Eskimo and, after promulgation of such regulations,
all takings of such marine mammals shall conform to such regulations.
(e) Marking and reporting of Cook Inlet Beluga Whales--(1)
Definitions. In addition to definitions contained in the MMPA and the
regulations in this part:
(i) Reporting means the collection and delivery of biological data,
harvest data, and other information regarding the effect of taking a
beluga whale (Delphinapterus leucas) from Cook Inlet, as required by
NMFS.
(ii) Whaling captain or vessel operator means the individual who is
identified by Alaskan Natives as the leader of each hunting team
(usually the other
[[Page 20]]
crew on the boat) and who is the whaling captain; or the individual
operating the boat at the time the whale is harvested or transported to
the place of processing.
(iii) Cook Inlet means all waters of Cook Inlet north of 59[deg]
North latitude, including, but not limited to, waters of Kachemak Bay,
Kamishak Bay, Chinitna Bay, and Tuxedni Bay.
(2) Marking. Each whaling captain or vessel operator, upon killing
and landing a beluga whale (Delphinapterus leucas) from Cook Inlet,
Alaska, must remove the lower left jawbone, leaving the teeth intact and
in place. When multiple whales are harvested during one hunting trip,
the jawbones will be marked for identification in the field to ensure
correct reporting of harvest information by placing a label marked with
the date, time, and location of harvest within the container in which
the jawbone is placed. The jawbone(s) must be retained by the whaling
captain or vessel operator and delivered to NMFS at the Anchorage Field
Office, 222 West 7th Avenue, Anchorage, Alaska 99513 within 72 hours of
returning from the hunt.
(3) Reporting. Upon delivery to NMFS of a jawbone, the whaling
captain or vessel operator must complete and mail a reporting form,
available from NMFS, to the NMFS Anchorage Field Office within 30 days.
A separate form is required for each whale harvested.
(i) To be complete, the form must contain the following information:
the date and location of kill, the method of harvest, and the coloration
of the whale. The respondent will also be invited to report on any other
observations concerning the animal or circumstance of the harvest.
(ii) Data collected pursuant to paragraph (e) of this section will
be reported on forms obtained from the Anchorage Field Office. These
data will be maintained in the NMFS Alaska Regional Office in Juneau,
Alaska, where such data will be available for public review.
(4) No person may falsify any information required to be set forth
on the reporting form as required by paragraph (e) of this section.
(5) The Anchorage Field Office of NMFS is located in room 517 of the
Federal Office Building, 222 West 7th Avenue; its mailing address is:
NMFS, Box 43, Anchorage, AK. 99513.
(f) Harvest management of Cook Inlet beluga whales--(1) Cooperative
management of subsistence harvest. Subject to the provisions of 16
U.S.C. 1371(b) and any further limitations set forth in Sec. 216.23,
any taking of a Cook Inlet beluga whale by an Alaska Native must be
authorized under an agreement for the co-management of subsistence uses
(hereinafter in this paragraph ``co-management agreement'') between the
National Marine Fisheries Service and an Alaska Native organization(s).
(2) Limitations. (i) Sale of Cook Inlet beluga whale parts and
products. Authentic Native articles of handicraft and clothing made from
nonedible by-products of beluga whales taken in accordance with the
provisions of this paragraph may be sold in interstate commerce. The
sale of any other part or product, including food stuffs, from Cook
Inlet beluga whales is prohibited, provided that nothing herein shall be
interpreted to prohibit or restrict customary and traditional
subsistence practices of barter and sharing of Cook Inlet beluga parts
and products.
(ii) Beluga whale calves or adults with calves. The taking of a calf
or an adult whale accompanied by a calf is prohibited.
(iii) Season. All takings of beluga whales authorized under Sec.
216.23(f) shall occur no earlier than July 1 of each year.
(iv) Taking during 2001-2004. The harvest of Cook Inlet beluga
whales is restricted during the four-year period of 2001-2004 as
follows:
(A) Strike limitations. Subject to the suspension provision of
subparagraph (C), a total of six (6) strikes, which could result in up
to six landings, are to be allocated through co-management agreement(s).
(B) Strike allocations. Four strikes, not to exceed one per year,
are allocated to the Native Village of Tyonek. The remaining two strikes
will be allocated over the 4-year period through co-management agreement
with other Cook Inlet community hunters, with no more than one such
strike being allocated during every other year.
[[Page 21]]
(C) Emergency provisions. Takings of beluga whales authorized under
Sec. 216.23 will be suspended whenever unusual mortalities exceed six
(6) whales in any year. ``Unusual mortalities'' include all documented
human-caused mortality (including illegal takings and net entanglements
but excluding all legally harvested whales) and all documented mortality
resulting from unknown or natural causes that occur above normal levels,
considered for the purposes of this provision to be twelve beluga whales
per year. The level of unusual mortalities shall be calculated by
documenting mortality for the calendar year and subtracting twelve. The
sum of this result and the carry over of unusual mortality from any
previous year from which the population has not recovered is the level
of unusual mortalities for the current year. If in any year the number
of unusual mortalities exceeds six whales, no strikes will be allowed in
that year or in subsequent years until the population has recovered from
those mortalities through foregone future harvests and natural
recruitment.
(v) Taking during 2005 and subsequent years. [Reserved]
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 64
FR 27927, May 24, 1999; 69 FR 17980, Apr. 6, 2004]
Sec. 216.24 Taking and related acts incidental to commercial fishing
operations by tuna purse seine vessels in the eastern tropical
Pacific Ocean.
(a)(1) No marine mammal may be taken in the course of a commercial
fishing operation by a U.S. purse seine fishing vessel in the ETP unless
the taking constitutes an incidental catch as defined in Sec. 216.3,
and vessel and operator permits have been obtained in accordance with
these regulations, and such taking is not in violation of such permits
or regulations.
(2)(i) It is unlawful for any person using a U.S. purse seine
fishing vessel of 400 short tons (st) (362.8 metric tons (mt)) carrying
capacity or less to intentionally deploy a net on or to encircle
dolphins, or to carry more than two speedboats, if any part of its
fishing trip is in the ETP.
(ii) It is unlawful for any person using a U.S. purse seine fishing
vessel of greater than 400 st (362.8 mt) carrying capacity that does not
have a valid permit obtained under these regulations to catch, possess,
or land tuna if any part of the vessel's fishing trip is in the ETP.
(iii) It is unlawful for any person subject to the jurisdiction of
the United States to receive, purchase, or possess tuna caught,
possessed, or landed in violation of paragraph (a)(2)(ii) of this
section.
(iv) It is unlawful for any person subject to the jurisdiction of
the United States to intentionally deploy a purse seine net on, or to
encircle, dolphins from a vessel operating in the ETP when there is not
a DML assigned to that vessel.
(v) It is unlawful for any person subject to the jurisdiction of the
United States to intentionally deploy a purse seine net on, or to
encircle, dolphins from a vessel operating in the ETP with an assigned
DML after a set in which the DML assigned to that vessel has been
reached or exceeded.
(vi) Alleged violations of the Agreement on the IDCP and/or these
regulations identified by the International Review Panel will be
considered for potential enforcement action by NMFS.
(3) Upon written request made in advance of entering the ETP, the
limitations in paragraphs (a)(2)(i) and (a)(2)(ii) of this section may
be waived by the Administrator, Southwest Region, for the purpose of
allowing transit through the ETP. The waiver will provide, in writing,
the terms and conditions under which the vessel must operate, including
a requirement to report to the Administrator, Southwest Region, the
vessel's date of exit from or subsequent entry into the permit area.
(b) Permits--(1) Vessel permit. The owner or managing owner of a
U.S. purse seine fishing vessel of greater than 400 st (362.8 mt)
carrying capacity that participates in commercial fishing operations in
the ETP must possess a valid vessel permit issued under paragraph (b) of
this section. This permit is not transferable and must be renewed
[[Page 22]]
annually. If a vessel permit holder surrenders his/her permit to the
Administrator, Southwest Region, the permit will not be returned and a
new permit will not be issued before the end of the calendar year.
Vessel permits will be valid through December 31 of each year.
(2) Operator permit. The person in charge of and actually
controlling fishing operations (hereinafter referred to as the operator)
on a U.S. purse seine fishing vessel engaged in commercial fishing
operations under a vessel permit must possess a valid operator permit
issued under paragraph (b) of this section. Such permits are not
transferable and must be renewed annually. To receive a permit, the
operator must have satisfactorily completed all required training under
paragraph (c)(5) of this section. The operator's permit is valid only
when the permit holder is on a vessel with a valid vessel permit.
Operator permits will be valid through December 31 of each year.
(3) Possession and display. A valid vessel permit issued pursuant to
paragraph (b)(1) of this section must be on board the vessel while
engaged in fishing operations, and a valid operator permit issued
pursuant to paragraph (b)(2) of this section must be in the possession
of the operator to whom it was issued. Permits must be shown upon
request to NMFS enforcement agents, U.S. Coast Guard officers, or
designated agents of NMFS or the Inter-American Tropical Tuna Commission
(IATTC) (including observers). A vessel owner or operator who is at sea
on a fishing trip when his or her permit expires and to whom a permit
for the next year has been issued, may take marine mammals under the
terms of the new permit without having to display it on board the vessel
until the vessel returns to port.
(4) Application for vessel permit. The owner or managing owner of a
purse seine vessel may apply for a permit from the Administrator,
Southwest Region, allowing at least 15 days for processing. All vessel
permit applications must be faxed to (562) 980-4027. An owner or
managing owner requesting to have a vessel in excess of 400 st (362.8
mt) carrying capacity for which a DML was requested categorized as
active on the Vessel Register under Sec. 300.22(b)(4)(i) of this title
must submit to the Administrator, Southwest Region, the vessel permit
application, payment of the observer placement fee under paragraph
(b)(6)(iii) of this section and payment of the vessel permit application
processing fee no later than September 15 of the year prior to the year
for which the DML was requested. The owner or managing owner of a vessel
in excess of 400 st (362.8 mt) carrying capacity not requesting a DML
must submit the vessel permit application, payment of the observer
placement fee, and payment of the vessel permit application processing
fee no later than November 30 of the year prior to the year for which
the vessel permit was requested. An application must contain:
(i) The name, official number, tonnage, carrying capacity in short
or metric tons, maximum speed in knots, processing equipment, and type
and quantity of gear, including an inventory of equipment required under
paragraph (c)(3) of this section if the application is for purse seining
involving the intentional taking of marine mammals, of the vessel that
is to be covered under the permit;
(ii) A statement of whether the vessel will make sets involving the
intentional taking of marine mammals;
(iii) The type and identification number(s) of Federal, state, and
local commercial fishing licenses under which vessel operations are
conducted, and the dates of expiration;
(iv) The name(s) of the operator(s) anticipated to be used; and
(v) The name and signature of the applicant, whether he/she is the
owner or the managing owner, his/her address, telephone and fax numbers,
and, if applicable, the name, address, telephone and fax numbers of the
agent or organization acting on behalf of the vessel.
(5) Application for operator permit. An applicant for an operator
permit must provide the following information to the Administrator,
Southwest Region, allowing at least 45 days for processing:
(i) The name, address, telephone and fax numbers of the applicant;
(ii) The type and identification number(s) of any Federal, state,
and local fishing licenses held by the applicant;
[[Page 23]]
(iii) The name of the vessel(s) on which the applicant anticipates
serving as an operator;
(iv) The date, location, and provider of training required under
paragraph (c)(5) of this section for the operator permit; and
(v) The applicant's signature or the signature of the applicant's
representative.
(6) Fees--(i) Vessel permit application fees. Payment of the permit
application fee is required before NMFS will issue a permit. The
Assistant Administrator may change the amount of this fee at any time if
a different fee is determined in accordance with the NOAA Finance
Handbook. The amount of the fee will be printed on the vessel permit
application form provided by the Administrator, Southwest Region.
(ii) Operator permit fee. There is no fee for the operator permit.
The Assistant Administrator may require a fee at any time if a fee is
determined in accordance with the NOAA Finance Handbook and specified by
the Administrator, Southwest Region, on the application form.
(iii) Observer placement fee. The observer placement fee supports
the placement of observers on individual vessels, and maintenance of the
observer program, as established by the IATTC or other approved observer
program.
(A) The owner or managing owner of a vessel for which a DML has been
requested must submit the observer placement fee, as established by the
IATTC or other approved observer program, to the Administrator,
Southwest Region, no later than September 15 of the year prior to the
calendar year for which the DML was requested. Payment of the observer
placement fee must be consistent with the fee for active status on the
Vessel Register under Sec. 300.22(b)(4) of this title.
(B) The owner or managing owner of a vessel for which a DML has not
been requested, but that is listed on the Vessel Register, as defined in
Sec. 300.21 of this title, must submit payment of the observer
placement fee, as established by the IATTC or other approved observer
program, to the Administrator, Southwest Region, no later than November
30 of the year prior to the calendar year in which the vessel will be
listed on the Vessel Register. Payment of the observer placement fee
must be consistent with the vessel's status, either active or inactive,
on the Vessel Register in Sec. 300.22(b)(4) of this title.
(C) The owner or managing owner of a purse seine vessel that is
licensed under the South Pacific Tuna Treaty must submit the observer
placement fee, as established by the IATTC or other approved observer
program, to the Administrator, Southwest Region, prior to obtaining an
observer and entering the ETP to fish. Consistent with Sec.
300.22(b)(1)(i) of this title, this class of purse seine vessels is not
required to be listed on the Vessel Register under Sec. 300.22(b)(4) of
this title in order to purse seine for tuna in the ETP during a single
fishing trip per calendar year of 90 days or less. Payment of the
observer placement fee must be consistent with the fee for active status
on the Vessel Register under Sec. 300.22(b)(4) of this title.
(D) The owner or managing owner of a purse seine vessel listed as
inactive on the Vessel Register at the beginning of the calendar year
and who requests to replace a vessel removed from active status on the
Vessel Register under Sec. 300.22(b)(4) of this title during the year,
must pay the observer placement fee associated with active status less
the observer placement fee associated with inactive status that was
already paid before NMFS will request the IATTC Secretariat change the
status of the vessel from inactive to active.
(E) The owner or managing owner of a purse seine vessel not listed
on the Vessel Register at the beginning of the calendar year and who
requests to replace a vessel removed from active status on the Vessel
Register under Sec. 300.22(b)(4) of this title during the year, must
pay the observer placement fee associated with active status before NMFS
will request the IATTC Secretariat change the status of the vessel to
active.
(F) Payments received after the dates specified in paragraphs (b)
(6) (iii)(A) or (B) of this section will be subject to a 10 percent
surcharge. The Administrator, Southwest Region, will forward all
observer placement fees described in this section to the IATTC or to the
[[Page 24]]
applicable organization approved by the Administrator, Southwest Region.
(7) Application approval. The Administrator, Southwest Region, will
determine the adequacy and completeness of an application and, upon
determining that an application is adequate and complete, will approve
that application and issue the appropriate permit, except for applicants
having unpaid or overdue civil penalties, criminal fines, or other
liabilities incurred in a legal proceeding.
(8) Conditions applicable to all permits--(i) General conditions.
Failure to comply with the provisions of a permit or with these
regulations may lead to suspension, revocation, modification, or denial
of a permit. The permit holder, vessel, vessel owner, operator, or
master may be subject, jointly or severally, to the penalties provided
for under the MMPA. Procedures governing permit sanctions and denials
are found at subpart D of 15 CFR part 904.
(ii) Observer placement. By obtaining a permit, the permit holder
consents to the placement of an observer on the vessel during every trip
involving operations in the ETP and agrees to payment of the fees for
observer placement. No observer will be assigned to a vessel unless that
vessel owner has submitted payment of observer fees to the
Administrator, Southwest Region. The observers may be placed under an
observer program of NMFS, IATTC, or another observer program approved by
the Administrator, Southwest Region.
(iii) Explosives. The use of explosive devices is prohibited during
all tuna purse seine operations that involve marine mammals.
(iv) Reporting requirements. (A) The vessel permit holder of each
permitted vessel must notify the Administrator, Southwest Region or the
IATTC contact designated by the Administrator, Southwest Region, at
least 5 days in advance of the vessel's departure on a fishing trip to
allow for observer placement on every trip.
(B) The vessel permit holder must notify the Administrator,
Southwest Region, or the IATTC contact designated by the Administrator,
Southwest Region, of any change of vessel operator at least 48 hours
prior to departing on a fishing trip. In the case of a change in
operator due to an emergency, notification must be made within 72 hours
of the change.
(v) Data release. By using a permit, the permit holder authorizes
the release to NMFS and the IATTC of all data collected by observers
aboard purse seine vessels during fishing trips under the IATTC observer
program or another international observer program approved by the
Administrator, Southwest Region. The permit holder must furnish the
international observer program with all release forms required to
authorize the observer data to be provided to NMFS and the IATTC. Data
obtained under such releases will be used for the same purposes as would
data collected directly by observers placed by NMFS and will be subject
to the same standards of confidentiality.
(9) Mortality and serious injury reports. The Administrator,
Southwest Region, will provide to the public periodic status reports
summarizing the estimated incidental dolphin mortality and serious
injury by U.S. vessels of individual species and stocks.
(c) Purse seining by vessels with Dolphin Mortality Limits (DMLs).
In addition to the terms and conditions set forth in paragraph (b) of
this section, any permit for a vessel to which a DML has been assigned
under paragraph (c)(9) of this section and any operator permit when used
on such a vessel are subject to the following terms and conditions:
(1) A vessel may be used to chase and encircle schools of dolphins
in the ETP only under the immediate direction of the holder of a valid
operator's permit.
(2) No retention of live marine mammals. Except as otherwise
authorized by a specific permit, live marine mammals incidentally taken
must be immediately returned to the ocean without further injury. The
operator of a purse seine vessel must take every precaution to refrain
from causing or permitting incidental mortality or serious injury of
marine mammals. Live marine mammals may not be brailed, sacked up, or
hoisted onto the deck during ortza retrieval.
(3) Gear and equipment required for valid permit. A vessel
possessing a vessel permit for purse seining involving
[[Page 25]]
the intentional taking of marine mammals may not engage in fishing
operations involving the intentional deployment of the net on or
encirclement of dolphins unless it is equipped with a dolphin safety
panel in its purse seine, has the other required gear and equipment, and
uses the required procedures.
(i) Dolphin safety panel. The dolphin safety panel must be a minimum
of 180 fathoms in length (as measured before installation), except that
the minimum length of the panel in nets deeper than 18 strips must be
determined in a ratio of 10 fathoms in length for each strip of net
depth. It must be installed so as to protect the perimeter of the
backdown area. The perimeter of the backdown area is the length of
corkline that begins at the outboard end of the last bowbunch pulled and
continues to at least two-thirds the distance from the backdown channel
apex to the stern tiedown point. The dolphin safety panel must consist
of small mesh webbing not to exceed 1 1/4 inches (3.18 centimeters (cm))
stretch mesh extending downward from the corkline and, if present, the
base of the dolphin apron to a minimum depth equivalent to two strips of
100 meshes of 4 1/4 inches (10.80 cm) stretch mesh webbing. In addition,
at least a 20-fathom length of corkline must be free from bunchlines at
the apex of the backdown channel.
(ii) Dolphin safety panel markers. Each end of the dolphin safety
panel and dolphin apron, if present, must be identified with an easily
distinguishable marker.
(iii) Dolphin safety panel hand holds. Throughout the length of the
corkline under which the dolphin safety panel and dolphin apron are
located, hand hold openings must be secured so that they will not allow
the insertion of a 1 3/8 inch (3.50 cm) diameter cylindrical-shaped
object.
(iv) Dolphin safety panel corkline hangings. Throughout the length
of the corkline under which the dolphin safety panel and dolphin apron
if present, are located, corkline hangings must be inspected by the
vessel operator following each trip. Hangings found to have loosened to
the extent that a cylindrical-shaped object with a 1 3/8 inch (3.50 cm)
diameter can be inserted between the cork and corkline hangings, must be
tightened so as not to allow the insertion of a cylindrical-shaped
object with a 1 3/8 inch (3.50 cm) diameter.
(v) Speedboats. A minimum of three speedboats in operating condition
must be carried. All speedboats carried aboard purse seine vessels and
in operating condition must be rigged with tow lines and towing bridles
or towing posts. Speedboat hoisting bridles may not be substituted for
towing bridles.
(vi) Raft. A raft suitable to be used as a dolphin observation-and-
rescue platform must be carried.
(vii) Facemask and snorkel, or viewbox. At least two facemasks and
snorkels or viewboxes must be carried.
(viii) Lights. The vessel must be equipped with lights capable of
producing a minimum of 140,000 lumens of output for use in darkness to
ensure sufficient light to observe that procedures for dolphin release
are carried out and to monitor incidental dolphin mortality.
(4) Vessel inspection--(i) Annual. At least once during each
calendar year, purse seine nets and other gear and equipment required
under Sec. 216.24(c)(3) must be made available for inspection and for a
trial set/net alignment by an authorized NMFS inspector or IATTC staff
as specified by the Administrator, Southwest Region, in order to obtain
a vessel permit.
(ii) Reinspection. Purse seine nets and other gear and equipment
required by these regulations must be made available for reinspection by
an authorized NMFS inspector or IATTC staff as specified by the
Administrator, Southwest Region. The vessel permit holder must notify
the Administrator, Southwest Region, of any net modification at least 5
days prior to departure of the vessel in order to determine whether a
reinspection or trial set/net alignment is required.
(iii) Failure to pass inspection. Upon failure to pass an inspection
or reinspection, a vessel may not engage in purse seining involving the
intentional taking of marine mammals until the deficiencies in gear or
equipment are corrected as required by NMFS.
(5) Operator permit holder training requirements. An operator must
maintain
[[Page 26]]
proficiency sufficient to perform the procedures required herein, and
must attend and satisfactorily complete a formal training session
approved by the Administrator, Southwest Region, in order to obtain his
or her permit. At the training session, an attendee will be instructed
on the relevant provisions and regulatory requirements of the MMPA and
the IDCP, and the fishing gear and techniques that are required for
reducing serious injury and mortality of dolphin incidental to purse
seining for tuna. Operators who have received a written certificate of
satisfactory completion of training and who possess a current or
previous calendar year permit will not be required to attend additional
formal training sessions unless there are substantial changes in the
relevant provisions or implementing regulations of the MMPA or the IDCP,
or in fishing gear and techniques. Additional training may be required
for any operator who is found by the Administrator, Southwest Region, to
lack proficiency in the required fishing procedures or familiarity with
the relevant provisions or regulations of the MMPA or the IDCP.
(6) Marine mammal release requirements. All operators fishing
pursuant to paragraph (c) of this section must use the following
procedures during all sets involving the incidental taking of marine
mammals in association with the capture and landing of tuna.
(i) Backdown procedure. Backdown must be performed following a purse
seine set in which dolphins are captured in the course of catching tuna,
and must be continued until it is no longer possible to remove live
dolphins from the net by this procedure. At least one crewmember must be
deployed during backdown to aid in the release of dolphins. Thereafter,
other release procedures required will be continued so that all live
dolphins are released prior to the initiation of the sack-up procedure.
(ii) Prohibited use of sharp or pointed instrument. The use of a
sharp or pointed instrument to remove any marine mammal from the net is
prohibited.
(iii) Sundown sets prohibited. On every set encircling dolphin, the
backdown procedure must be completed no later than one-half hour after
sundown, except as provided here. For the purpose of this section,
sundown is defined as the time at which the upper edge of the sun
disappears below the horizon or, if the view of the sun is obscured, the
local time of sunset calculated from tables developed by the U.S. Naval
Observatory or other authoritative source approved by the Administrator,
Southwest Region. A sundown set is a set in which the backdown procedure
has not been completed and rolling the net to sack-up has not begun
within one-half hour after sundown. Should a set extend beyond one-half
hour after sundown, the operator must use the required marine mammal
release procedures including the use of the high intensity lighting
system. In the event a sundown set occurs where the seine skiff was let
go 90 or more minutes before sundown, and an earnest effort to rescue
dolphins is made, the International Review Panel of the IDCP may
recommend to the United States that in the view of the International
Review Panel, prosecution by the United States is not recommended. Any
such recommendation will be considered by the United States in
evaluating the appropriateness of prosecution in a particular
circumstance.
(iv) Dolphin safety panel. During backdown, the dolphin safety panel
must be positioned so that it protects the perimeter of the backdown
area. The perimeter of the backdown area is the length of corkline that
begins at the outboard end of the last bow bunch pulled and continues to
at least two-thirds the distance from the backdown channel apex to the
stern tiedown point.
(7) Experimental fishing operations. The Administrator, Southwest
Region, may authorize experimental fishing operations, consistent with
the provisions of the IDCP, for the purpose of testing proposed
improvements in fishing techniques and equipment that may reduce or
eliminate dolphin mortality or serious injury, or do not require the
encirclement of dolphins in the course of fishing operations. The
Administrator, Southwest Region, may waive, as appropriate, any
requirements of this section except DMLs and the obligation to carry an
observer.
[[Page 27]]
(i) A vessel permit holder may apply for an experimental fishing
operation waiver by submitting the following information to the
Administrator, Southwest Region, no less than 90 days before the date
the proposed operation is intended to begin:
(A) The name(s) of the vessel(s) and the vessel permit holder(s) to
participate;
(B) A statement of the specific vessel gear and equipment or
procedural requirement to be exempted and why such an exemption is
necessary to conduct the experiment;
(C) A description of how the proposed modification to the gear and
equipment or procedures is expected to reduce incidental mortality or
serious injury of marine mammals;
(D) A description of the applicability of this modification to other
purse seine vessels;
(E) The planned design, time, duration, and general area of the
experimental operation;
(F) The name(s) of the permitted operator(s) of the vessel(s) during
the experiment;
(G) A statement of the qualifications of the individual or company
doing the analysis of the research; and
(H) Signature of the permitted operator or of the operator's
representative.
(ii) The Administrator, Southwest Region, will acknowledge receipt
of the application and, upon determining that it is complete, will
publish a notice in the Federal Register summarizing the application,
making the full application available for inspection and inviting
comments for a minimum period of 30 days from the date of publication.
(iii) The Administrator, Southwest Region, after considering the
information submitted in the application identified in paragraph
(c)(7)(i) of this section and the comments received, will either issue a
waiver to conduct the experiment that includes restrictions or
conditions deemed appropriate, or deny the application, giving the
reasons for denial.
(iv) A waiver for an experimental fishing operation will be valid
only for the vessels and operators named in the permit, for the time
period and areas specified, for trips carrying an observer designated by
the Administrator, Southwest Region, and when all the terms and
conditions of the permit are met.
(v) The Administrator, Southwest Region, may suspend or revoke an
experimental fishing waiver in accordance with 15 CFR part 904 if the
terms and conditions of the waiver or the provisions of the regulations
are not followed.
(8) Operator permit holder performance requirements. [Reserved]
(9) Vessel permit holder dolphin mortality limits. For purposes of
this paragraph, the term ``vessel permit holder'' includes both the
holder of a current vessel permit and also the holder of a vessel permit
for the following year.
(i) By September 1 each year, a vessel permit holder desiring a DML
for the following year must provide to the Administrator, Southwest
Region, the name of the U.S. purse seine fishing vessel(s) of carrying
capacity greater than 400 st (362.8 mt) that the owner intends to use to
intentionally deploy purse seine fishing nets in the ETP to encircle
dolphins in an effort to capture tuna during the following year. NMFS
will forward the list of purse seine vessels to the Director of the
IATTC on or before October 1, or as otherwise required by the IDCP, for
assignment of a DML for the following year under the provisions of Annex
IV of the Agreement on the IDCP.
(ii) Each vessel permit holder that desires a DML only for the
period between July 1 to December 31 must provide the Administrator,
Southwest Region, by September 1 of the prior year, the name of the U.S.
purse seine fishing vessel(s) of greater than 400 st (362.8 mt) carrying
capacity that the owner intends to use to intentionally deploy purse
seine fishing nets in the ETP to encircle dolphins in an effort to
capture tuna during the period. NMFS will forward the list of purse
seine vessels to the Director of the IATTC on or before October 1, or as
otherwise required under the IDCP, for possible assignment of a DML for
the 6-month period July 1 to December 31. Under the IDCP, the DML will
be calculated by the IDCP from any unutilized pool of DMLs in accordance
with the procedure described in Annex IV of the Agreement
[[Page 28]]
on the IDCP and will not exceed one-half of an unadjusted full-year DML
as calculated by the IDCP.
(iii)(A) The Administrator, Southwest Region, will notify vessel
owners of the DML assigned for each vessel for the following year, or
the second half of the year, as applicable.
(B) The Administrator, Southwest Region, may adjust the DMLs in
accordance with Annex IV of the Agreement on the IDCP. All adjustments
of full-year DMLs will be made before January 1, and the Administrator,
Southwest Region, will notify the Director of the IATTC of any
adjustments prior to a vessel departing on a trip using its adjusted
DML. The notification will be no later than February 1 in the case of
adjustments to full-year DMLs, and no later than May 1 in the case of
adjustments to DMLs for the second half of the year.
(C) In accordance with the requirements of Annex IV of the Agreement
on the IDCP, the Administrator, Southwest Region, may adjust a vessel's
DML if it will further scientific or technological advancement in the
protection of marine mammals in the fishery or if the past performance
of the vessel indicates that the protection or use of the yellowfin tuna
stocks or marine mammals is best served by the adjustment, within the
mandates of the MMPA. Experimental fishing operation waivers or
scientific research permits will be considered a basis for adjustments.
(iv)(A) A vessel assigned a full-year DML that does not make a set
on dolphins by April 1 or that leaves the fishery will lose its DML for
the remainder of the year, unless the failure to set on dolphins is due
to force majeure or other extraordinary circumstances as determined by
the International Review Panel.
(B) A vessel assigned a DML for the second half of the year will be
considered to have lost its DML if the vessel has not made a set on
dolphins before December 31, unless the failure to set on dolphins is
due to force majeure or extraordinary circumstances as determined by the
International Review Panel.
(C) Any vessel that loses its DML for 2 consecutive years will not
be eligible to receive a DML for the following year.
(D) NMFS will determine, based on available information, whether a
vessel has left the fishery.
(1) A vessel lost at sea, undergoing extensive repairs, operating in
an ocean area other than the ETP, or for which other information
indicates that vessel will no longer be conducting purse seine
operations in the ETP for the remainder of the period covered by the DML
will be determined to have left the fishery.
(2) NMFS will make all reasonable efforts to determine the
intentions of the vessel owner. The owner of any vessel that has been
preliminarily determined to have left the fishery will be provided
notice of such preliminary determination and given the opportunity to
provide information on whether the vessel has left the fishery prior to
NMFS making a final determination under 15 CFR part 904 and notifying
the IATTC.
(v) Any vessel that exceeds its assigned DML after any applicable
adjustment under paragraph (c)(9)(iii) of this section will have its DML
for the subsequent year reduced by 150 percent of the overage, unless
another adjustment is determined by the International Review Panel, as
mandated by the Agreement on the IDCP.
(vi) A vessel that is covered by a valid vessel permit and that does
not normally fish for tuna in the ETP but desires to participate in the
fishery on a limited basis may apply for a per-trip DML from the
Administrator, Southwest Region, at any time, allowing at least 60 days
for processing. The request must state the expected number of trips
involving sets on dolphins and the anticipated dates of the trip or
trips. The request will be forwarded to the Secretariat of the IATTC for
processing in accordance with Annex IV of the Agreement on the IDCP. A
per-trip DML will be assigned if one is made available in accordance
with the terms of Annex IV of the Agreement on the IDCP. If a vessel
assigned a per-trip DML does not set on dolphins during that trip, the
vessel will be considered to have lost its DML unless this was a result
of force majeure or other extraordinary circumstances as determined by
the International Review
[[Page 29]]
Panel. After two consecutive losses of a DML, a vessel will not be
eligible to receive a DML for the next fishing year.
(vii) Observers will make their records available to the vessel
operator at any reasonable time, including after each set, in order for
the operator to monitor the balance of the DML(s) remaining for use.
(viii) Vessel and operator permit holders must not deploy a purse
seine net on or encircle any school of dolphins containing individuals
of a particular stock of dolphins for the remainder of the calendar
year:
(A) after the applicable per-stock per-year dolphin mortality limit
for that stock of dolphins (or for that vessel, if so assigned) has been
reached or exceeded; or
(B) after the time and date provided in actual notification or
notification in the Federal Register by the Administrator, Southwest
Region, based upon the best available evidence, stating when any
applicable per-stock per-year dolphin mortality limit has been reached
or exceeded, or is expected to be reached in the near future.
(ix) If individual dolphins belonging to a stock that is prohibited
from being taken are not reasonably observable at the time the net skiff
attached to the net is released from the vessel at the start of a set,
the fact that individuals of that stock are subsequently taken will not
be cause for enforcement action provided that all procedures required by
the applicable regulations have been followed.
(x) Vessel and operator permit holders must not intentionally deploy
a purse seine net on or encircle dolphins intentionally:
(A) after a set in which the vessel's DML, as adjusted, has been
reached or exceeded; or
(B) after the date and time provided in actual notification by
letter, facsimile, radio, or electronic mail, or notice in the Federal
Register by the Administrator, Southwest Region, based upon the best
available evidence, that intentional sets on dolphins must cease because
the total of the DMLs assigned to the U.S. fleet has been reached or
exceeded, or is expected to be exceeded in the near future.
(d) Purse seining by vessels without assigned DMLs. In addition to
the requirements of paragraph (b) of this section, a vessel permit used
for a trip not involving an assigned DML and the operator's permit when
used on such a vessel are subject to the following terms and conditions:
a permit holder may take marine mammals provided that such taking is an
accidental occurrence in the course of normal commercial fishing
operations and the vessel does not intentionally deploy its net on, or
to encircle, dolphins; marine mammals taken incidental to such
commercial fishing operations must be immediately returned to the
environment where captured without further injury, using release
procedures such as hand rescue, or aborting the set at the earliest
effective opportunity; and the use of one or more rafts and facemasks or
viewboxes to aid in the rescue of dolphins is recommended.
(e) Observers--(1) The holder of a vessel permit must allow an
observer duly authorized by the Administrator, Southwest Region, to
accompany the vessel on all fishing trips in the ETP for the purpose of
conducting research and observing operations, including collecting
information that may be used in civil or criminal penalty proceedings,
forfeiture actions, or permit sanctions. A vessel that fails to carry an
observer in accordance with these requirements may not engage in fishing
operations.
(2) Research and observation duties will be carried out in such a
manner as to minimize interference with commercial fishing operations.
Observers must be provided access to vessel personnel and to dolphin
safety gear and equipment, electronic navigation equipment, radar
displays, high powered binoculars, and electronic communication
equipment. The navigator must provide true vessel locations by latitude
and longitude, accurate to the nearest minute, upon request by the
observer. Observers must be provided with adequate space on the bridge
or pilothouse for clerical work, as well as space on deck adequate for
carrying out observer duties. No vessel owner, master, operator, or crew
member of a permitted vessel may impair, or in any
[[Page 30]]
way interfere with, the research or observations being carried out.
Masters must allow observers to use vessel communication equipment
necessary to report information concerning the take of marine mammals
and other observer collected data upon request of the observer.
(3) Any marine mammals killed during fishing operations that are
accessible to crewmen and requested from the permit holder or master by
the observer must be brought aboard the vessel and retained for
biological processing, until released by the observer for return to the
ocean. Whole marine mammals or marine mammal parts designated as
biological specimens by the observer must be retained in cold storage
aboard the vessel until retrieved by authorized personnel of NMFS or the
IATTC when the vessel returns to port for unloading.
(4) It is unlawful for any person to forcibly assault, impede,
intimidate, interfere with, or to influence or attempt to influence an
observer, or to harass (including sexual harassment) an observer by
conduct that has the purpose or effect of unreasonably interfering with
the observer's work performance, or that creates an intimidating,
hostile, or offensive environment. In determining whether conduct
constitutes harassment, the totality of the circumstances, including the
nature of the conduct and the context in which it occurred, will be
considered. The determination of the legality of a particular action
will be made from the facts on a case-by-case basis.
(5)(i) All observers must be provided sleeping, toilet and eating
accommodations at least equal to that provided to a full crew member. A
mattress or futon on the floor or a cot is not acceptable in place of a
regular bunk. Meal and other galley privileges must be the same for the
observer as for other crew members.
(ii) Female observers on a vessel with an all-male crew must be
accommodated either in a single-person cabin or, if reasonable privacy
can be ensured by installing a curtain or other temporary divider, in a
two-person cabin shared with a licensed officer of the vessel. If the
cabin assigned to a female observer does not have its own toilet and
shower facilities that can be provided for the exclusive use of the
observer, then a schedule for time-sharing common facilities must be
established before the placement meeting and approved by NMFS or other
approved observer program and must be followed during the entire trip.
(iii) In the event there are one or more female crew members, the
female observer must be provided a bunk in a cabin shared solely with
female crew members, and provided toilet and shower facilities shared
solely with these female crew members.
(f) Importation, purchase, shipment, sale and transport. (1)(i) It
is illegal to import into the United States any fish, whether fresh,
frozen, or otherwise prepared, if the fish have been caught with
commercial fishing technology that results in the incidental kill or
incidental serious injury of marine mammals in excess of that allowed
under this part for U.S. fishermen, or as specified at paragraph (f)(6)
of this section.
(ii) For purposes of this paragraph (f), and in applying the
definition of an ``intermediary nation,'' an import occurs when the fish
or fish product is released from a nation's Customs' custody and enters
into the commerce of the nation. For other purposes, ``import'' is
defined in Sec. 216.3.
(2) Imports requiring a Fisheries Certificate of Origin. Shipments
of tuna, tuna products, and certain other fish products identified by
the U.S. Harmonized Tariff Schedule (HTS) numbers listed in paragraphs
(f)(2)(i), (f)(2)(ii) and (f)(2)(iii) of this section may not be
imported into the United States unless a properly completed Fisheries
Certificate of Origin (FCO), NOAA Form 370, is filed with the U.S.
Customs Service at the time of importation.
(i) HTS numbers requiring a Fisheries Certificate of Origin, subject
to yellowfin tuna embargo. The following HTS numbers identify yellowfin
tuna or yellowfin tuna products (other than fresh tuna) known to be
imported into the United States. All shipments imported into the United
States under these HTS numbers must be accompanied by an FCO. The scope
of yellowfin tuna embargoes and procedures for attaining an affirmative
finding are described
[[Page 31]]
under paragraphs (f)(6) and (f)(8) of this section, respectively.
(A) Frozen:...............................
0303.42.0020.............................. Yellowfin tuna, whole,
frozen
0303.42.0040.............................. Yellowfin tuna, eviscerated,
head on, frozen
0303.42.0060.............................. Yellowfin tuna, other,
frozen
(B) Airtight Containers: (products
containing Yellowfin).
1604.14.1010.............................. Tuna, non-specific, in oil,
in foil or other flexible
airtight containers
weighing with their
contents not more than 6.8
kg each
1604.14.1090.............................. Tuna, non-specific, in oil,
in airtight containers,
other
1604.14.2291.............................. Tuna, other than albacore,
not in oil, in foil or
other flexible airtight
containers weighing with
their contents not more
than 6.8 kg each, under
quota
1604.14.2299.............................. Tuna, other than albacore,
not in oil, in airtight
containers, under quota
1604.14.3091.............................. Tuna, other than albacore,
not in oil, in foil or
other flexible airtight
containers weighing with
their contents not more
than 6.8 kg each, over
quota
1604.14.3099.............................. Tuna, other than albacore,
not in oil, in airtight
containers, over quota
(C) Loins: (Yellowfin)....................
1604.14.4000.............................. Tuna, not in airtight
containers, not in oil,
weighing with their
contents over 6.8 kg
1604.14.5000.............................. Tuna, not in airtight
containers, other
(D) Other: (products containing Yellowfin)
0304.20.2066.............................. Other fish, fillets,
skinned, in blocks weighing
over 4.5 kg, frozen
0304.20.6096.............................. Other fish, fillets, frozen
1604.20.2500.............................. Balls and cakes, not in oil,
in airtight containers,
other
1604.20.3000.............................. Balls and cakes, other
------------------------------------------------------------------------
(ii) HTS numbers requiring a Fisheries Certificate of Origin, not
subject to yellowfin tuna embargo. The following HTS numbers identify
tuna or tuna products, (other than fresh tuna or yellowfin tuna
identified in paragraph (f)(2)(i)) of this section, known to be imported
into the United States. All shipments imported into the United States
under these HTS numbers must be accompanied by an FCO.
(A) Frozen:...............................
0303.41.0000.............................. Albacore or longfinned
tunas, frozen
0303.43.0000.............................. Skipjack, frozen
0303.44.0000.............................. Bigeye, frozen
0303.45.0000.............................. Bluefin, frozen
0303.46.0000.............................. Bluefin Southern, frozen
0303.49.0100.............................. Other tuna, frozen
(B) Airtight Containers: (Other than
Yellowfin).
1604.14.1010.............................. Tuna, non-specific, in oil,
in foil or other flexible
airtight containers
weighing with their
contents not more than 6.8
kg each
1604.14.1090.............................. Tuna, non-specific, in oil,
in airtight containers,
other
1604.14.2251.............................. Tuna, albacore, not in oil,
in foil or other flexible
airtight containers
weighing with their
contents not more than 6.8
kg each, under quota
1604.14.2259.............................. Tuna, albacore, not in oil,
in airtight containers,
other, under quota
1604.14.2291.............................. Tuna, other than albacore,
not in oil, in foil or
other flexible airtight
containers weighing with
their contents not more
than 6.8 kg each, under
quota
1604.14.2299.............................. Tuna, other than albacore,
not in oil, in airtight
containers, other, under
quota
1604.14.3051.............................. Tuna, albacore, not in oil,
in foil or other flexible
airtight containers
weighing with their
contents not more than 6.8
kg each, over quota
1604.14.3059.............................. Tuna, albacore, not in oil,
in airtight containers,
other, over quota
1604.14.3091.............................. Tuna, other than albacore,
not in oil, in foil or
other flexible airtight
containers weighing with
their contents not more
than 6.8 kg each, over
quota
1604.14.3099.............................. Tuna, other than albacore,
not in oil, in airtight
containers, other, over
quota
(C) Loins: (Other than Yellowfin).........
1604.14.4000.............................. Tuna, not in airtight
containers, in bulk or in
immediate containers
weighing with their
contents over 6.8 kg, in
oil
1604.14.5000.............................. Tuna, not in airtight
containers, other
(D) Other: (only if the product contains
tuna).
0304.20.2066.............................. Other fish, fillets,
skinned, in blocks weighing
over 4.5 kg, frozen
0304.20.6096.............................. Other fish, fillets, frozen
1604.20.2500.............................. Balls and cakes, not in oil,
in airtight containers,
other
1604.20.3000.............................. Balls and cakes, other
------------------------------------------------------------------------
(iii) Exports from driftnet nations only: HTS numbers requiring a
Fisheries Certificate of Origin and official certification. The
following HTS numbers identify categories of fish and shellfish, in
addition to those identified in paragraphs (f)(2)(i) and (f)(2)(ii) of
this section, known to have been harvested using a large-scale driftnet
and imported into the United States. Shipments exported from a large-
scale driftnet nation, as identified under paragraph (f)(7) of this
section, and imported into the United States under any of the HTS
numbers listed in paragraph (f)(2) of this section must be accompanied
by an FCO and the official statement described in paragraph (f)(4)(xiii)
of this section.
(A) Frozen:...............................
0303.19.0012.............................. Salmon, chinook, frozen
0303.19.0022.............................. Salmon, chum, frozen
0303.19.0032.............................. Salmon, pink, frozen
[[Page 32]]
0303.19.0052.............................. Salmon, coho, frozen
0303.19.0062.............................. Salmon, Pacific, non-
specific, frozen
0303.21.0000.............................. Trout, frozen
0303.22.0000.............................. Salmon, Atlantic and Danube,
frozen
0303.29.0000.............................. Salmonidae, other, frozen
0303.75.0010.............................. Dogfish, frozen
0303.75.0090.............................. Other sharks, frozen
0303.79.2041.............................. Swordfish steaks, frozen
0303.79.2049.............................. Swordfish, other, frozen
0303.79.4097.............................. Fish, other, frozen
0304.20.2066.............................. Fish, fillet, skinned, in
blocks, frozen over 4.5 kg
0304.20.6008.............................. Salmonidae, salmon fillet,
frozen
0304.20.6092.............................. Swordfish fillets, frozen
0304.20.6096.............................. Fish, fillet, other, frozen
0307.49.0010.............................. Squid, other, fillet, frozen
(B) Canned:...............................
1604.11.2020.............................. Salmon, pink, canned in oil,
in airtight containers
1604.11.2030.............................. Salmon, sockeye, canned in
oil, in airtight containers
1604.11.2090.............................. Salmon, other, canned in
oil, in airtight containers
1604.11.4010.............................. Salmon, chum, canned, not in
oil
1604.11.4020.............................. Salmon, pink, canned, not in
oil
1604.11.4030.............................. Salmon, sockeye, canned, not
in oil
1604.11.4040.............................. Salmon, other, canned, not
in oil
1604.11.4050.............................. Salmon, other, canned, not
in oil
1604.19.2000.............................. Fish, other, in airtight
containers, not in oil
1604.19.3000.............................. Fish, other, in airtight
containers, in oil
1605.90.6050.............................. Squid, loligo, prepared/
preserved
1605.90.6055.............................. Squid, other, prepared/
preserved
(C) Other:................................
0305.30.6080.............................. Fish, other, fillet, dried/
salted/brine
0305.49.4040.............................. Fish, other, smoked
0305.59.2000.............................. Shark fins, dried
0305.59.4000.............................. Fish, other, dried
0305.69.4000.............................. Salmon, other, salted (or in
brine)
0305.69.5000.............................. Fish, other, salted (or in
brine), in immediate
containers, not over 6.8 kg
0305.69.6000.............................. Fish, other, salted (or in
brine)
0307.49.0050.............................. Squid, other, frozen/dried/
salted/brine
0307.49.0060.............................. Squid, other, & cuttle fish
frozen/dried/salted/brine
------------------------------------------------------------------------
(3) Disposition of Fisheries Certificates of Origin. The FCO
described in paragraph (f)(4) of this section may be obtained from the
Administrator, Southwest Region, or downloaded from the Internet at
http://swr.nmfs.noaa.gov/noaa370.htm.
(i) A properly completed FCO and its attached certificates, if
applicable, must accompany the required U.S. Customs entry documents
that are filed at the time of import.
(ii) FCOs and associated certifications, if any, that accompany
imported shipments of tuna must be submitted by the importer of record
to the Tuna Tracking and Verification Program, Southwest Region, within
30 days of the shipment's entry into the commerce of the United States.
FCOs submitted via mail should be sent to Tuna Tracking and Verification
Program, Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469.
Copies of the documents may be submitted electronically using a secure
file transfer protocol (FTP) site. Importers of record interested in
submitting FCOs and associated certifications via FTP may contact a
representative of the Tuna Tracking and Verification Program at the
following email address: [email protected]. The Tuna Tracking and
Verification Program will facilitate secure transfer and protection of
certifications by assigning a separate electronic folder for each
importer. Access to the electronic folder will require a user
identification and password. The Tuna Tracking and Verification Program
will assign each importer a unique user identification and password.
Safeguarding the confidentiality of the user identification and password
is the responsibility of the importer to whom they are assigned. Copies
of the documents may also be submitted via mail either on compact disc
or as hard copies. All electronic submissions, whether via FTP or on
compact disc, must be in either Adobe Portable Document Format (PDF) or
as an image file embedded in a Microsoft Word, Microsoft PowerPoint, or
Corel WordPerfect file.
(iii) FCOs that accompany imported shipments of tuna destined for
further processing in the United States must be endorsed at each change
in ownership and submitted to the Administrator, Southwest Region, by
the last endorser when all required endorsements are completed.
(iv) Importers and exporters are required to retain their records,
including FCOs, import or export documents, invoices, and bills of
lading for 2 years, and such records must be made available within 30
days of a request by the Secretary or the Administrator, Southwest
Region.
(4) Contents of Fisheries Certificate of Origin. An FCO, certified
to be accurate by the exporter(s) of the accompanying shipment, must
include the following information:
(i) Customs entry identification;
(ii) Date of entry;
(iii) Exporter's full name and complete address;
[[Page 33]]
(iv) Importer's or consignee's full name and complete address;
(v) Species description, product form, and HTS number;
(vi) Total net weight of the shipment in kilograms;
(vii) Ocean area where the fish were harvested (ETP, western Pacific
Ocean, south Pacific Ocean, eastern Atlantic Ocean, western Atlantic
Ocean, Caribbean Sea, Indian Ocean, or other);
(viii) Type of fishing gear used to harvest the fish (purse seine,
longline, baitboat, large-scale driftnet, gillnet, trawl, pole and line,
or other);
(ix) Country under whose laws the harvesting vessel operated based
upon the flag of the vessel or, if a certified charter vessel, the
country that accepted responsibility for the vessel's fishing
operations;
(x) Dates on which the fishing trip began and ended;
(xi) The name of the harvesting vessel;
(xii) Dolphin-safe condition of the shipment, described by checking
the appropriate statement on the form and attaching additional
certifications if required;
(xiii) For shipments harvested by vessels of a nation known to use
large-scale driftnets, as determined by the Secretary pursuant to
paragraph (f)(7) of this section, the High Seas Driftnet Certification
contained on the FCO must be dated and signed by a responsible
government official of the harvesting nation, certifying that the fish
or fish products were harvested by a method other than large-scale
driftnet; and
(xiv) Each additional importer, exporter, or processor who takes
custody of the shipment must sign and date the form to certify that the
form and attached documentation accurately describes the shipment of
fish that they accompany.
(5) Dolphin-safe label. Tuna or tuna products sold in or exported
from the United States that include on the label the term ``dolphin-
safe'' or any other term or symbol that claims or suggests the tuna were
harvested in a manner not injurious to dolphins are subject to the
requirements of subpart H of this part (Sec. 216.90 et seq.).
(6) Scope of embargoes--(i) ETP yellowfin tuna embargo. Yellowfin
tuna or products of yellowfin tuna harvested using a purse seine in the
ETP identified by an HTS number listed in paragraph (f)(2)(i) of this
section may not be imported into the United States if such tuna or tuna
products were:
(A) Harvested on or after March 3, 1999, the effective date of
section 4 of the IDCPA, and harvested by, or exported from, a nation
that the Assistant Administrator has determined has jurisdiction over
purse seine vessels of greater than 400 st (362.8 mt) carrying capacity
harvesting tuna in the ETP, unless the Assistant Administrator has made
an affirmative finding required for importation for that nation under
paragraph (f)(8) of this section;
(B) Exported from an intermediary nation, as defined in Section 3 of
the MMPA, and a ban is currently in force prohibiting the importation
from that nation under paragraph (f)(9) of this section; or
(C) Harvested before March 3, 1999, the effective date of Section 4
of the IDCPA, and would have been banned from importation under Section
101(a)(2) of the MMPA at the time of harvest.
(ii) Driftnet embargo. A shipment containing fish or fish products
identified by an HTS number listed in paragraph (f)(2) of this section
may not be imported into the United States if it is harvested by a
large-scale driftnet, or if it is exported from or harvested on the high
seas by any nation determined by the Assistant Administrator to be
engaged in large-scale driftnet fishing, unless a government official of
the large-scale driftnet nation completes, signs and dates the High Seas
Driftnet section of the FCO certifying that the fish or fish products
were harvested by a method other than large-scale driftnet.
(iii) Pelly certification. After 6 months of an embargo being in
place against a nation under this section, the Secretary will certify
that nation under section 8(a) of the Fishermen's Protective Act (22
U.S.C. 1978(a)). When such an embargo is lifted, the Secretary will
terminate the certification under Section 8(d) of that Act (22 U.S.C.
1978(d)).
[[Page 34]]
(iv) Coordination. The Assistant Administrator will promptly advise
the Department of State and the Department of Homeland Security of
embargo decisions, actions, and finding determinations.
(7) Large-scale driftnet nation: determination. Based upon the best
information available, the Assistant Administrator will determine which
nations have registered vessels that engage in fishing using large-scale
driftnets. Such determinations will be published in the Federal
Register. A responsible government official of any such nation may
certify to the Assistant Administrator that none of the nation's vessels
use large-scale driftnets. Upon receipt of the certification, the
Assistant Administrator may find, and publish such finding in the
Federal Register, that none of that nation's vessels engage in fishing
with large-scale driftnets.
(8) Affirmative finding procedure for nations harvesting yellowfin
tuna using a purse seine in the ETP. (i) The Assistant Administrator
will determine, on an annual basis, whether to make an affirmative
finding based upon documentary evidence provided by the government of
the harvesting nation or by the IDCP and the IATTC, and will publish the
finding in the Federal Register. A finding will remain valid for 1 year
or for such other period as the Assistant Administrator may determine.
An affirmative finding will be terminated if the Assistant Administrator
determines that the requirements of this paragraph are no longer being
met. Every 5 years, the government of the harvesting nation must submit
such documentary evidence directly to the Assistant Administrator and
request an affirmative finding. Documentary evidence must be submitted
by the harvesting nation for the first affirmative finding application.
The Assistant Administrator may require the submission of supporting
documentation or other verification of statements made in connection
with requests to allow importations. An affirmative finding applies to
yellowfin tuna and yellowfin tuna products that were harvested by
vessels of the nation after March 3, 1999. To make an affirmative
finding, the Assistant Administrator must find that:
(A) The harvesting nation participates in the IDCP and is either a
member of the IATTC or has initiated (and within 6 months thereafter
completed) all steps required of applicant nations, in accordance with
article V, paragraph 3, of the Convention establishing the IATTC, to
become a member of that organization;
(B) The nation is meeting its obligations under the IDCP and its
obligations of membership in the IATTC, including all financial
obligations;
(C)(1) The annual total dolphin mortality of the nation's purse
seine fleet (including certified charter vessels operating under its
jurisdiction) did not exceed the aggregated total of the mortality
limits assigned by the IDCP for that nation's purse seine vessels for
the year preceding the year in which the finding would start; or
(2)(i) Because of extraordinary circumstances beyond the control of
the nation and the vessel captains, the total dolphin mortality of the
nation's purse seine fleet (including certified charter vessels
operating under its jurisdiction) exceeded the aggregated total of the
mortality limits assigned by the IDCP for that nation's purse seine
vessels; and
(ii) Immediately after the national authorities discovered the
aggregate mortality of its fleet had been exceeded, the nation required
all its vessels to cease fishing for tuna in association with dolphins
for the remainder of the calendar year; and
(D)(1) In any years in which the parties agree to a global
allocation system for per-stock per-year individual stock quotas, the
nation responded to the notification from the IATTC that an individual
stock quota had been reached by prohibiting any additional sets on the
stock for which the quota had been reached;
(2) If a per-stock per-year quota is allocated to each nation, the
annual per-stock per-year dolphin mortality of the nation's purse seine
fleet (including certified charter vessels operating under its
jurisdiction) did not exceed the aggregated total of the per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels
(if
[[Page 35]]
any) for the year preceding the year in which the finding would start;
or
(3)(i) Because of extraordinary circumstances beyond the control of
the nation and the vessel captains, the per-stock per-year dolphin
mortality of the nation's purse seine fleet (including certified charter
vessels operating under its jurisdiction) exceeded the aggregated total
of the per-stock per-year limits assigned by the IDCP for that nation's
purse seine vessels; and
(ii) Immediately after the national authorities discovered the
aggregate per-stock mortality limits of its fleet had been exceeded, the
nation required all its vessels to cease fishing for tuna in association
with the stocks whose limits had been exceeded, for the remainder of the
calendar year.
(iii) Documentary Evidence and Compliance with the IDCP--(A)
Documentary Evidence. The Assistant Administrator will make an
affirmative finding under paragraph (f)(8)(i) of this section only if
the government of the harvesting nation provides directly to the
Assistant Administrator, or authorizes the IATTC to release to the
Assistant Administrator, complete, accurate, and timely information that
enables the Assistant Administrator to determine whether the harvesting
nation is meeting the obligations of the IDCP, and whether ETP-harvested
tuna imported from such nation comports with the tracking and
verification regulations of subpart H of this part.
(B) Revocation. After considering the information provided under
paragraph (f)(8)(ii)(A) of this section, each party's financial
obligations to the IATTC, and any other relevant information, including
information that a nation is consistently failing to take enforcement
actions on violations that diminish the effectiveness of the IDCP, the
Assistant Administrator, in consultation with the Secretary of State,
will revoke an affirmative finding issued to a nation that is not
meeting the obligations of the IDCP.
(iv) A harvesting nation may apply for an affirmative finding at any
time by providing to the Assistant Administrator the information and
authorizations required in paragraphs (f)(8)(i) and (f)(8)(ii) of this
section, allowing at least 60 days from the submission of complete
information to NMFS for processing.
(v) The Assistant Administrator will make or renew an affirmative
finding for the period from April 1 through March 31 of the following
year, or portion thereof, if the harvesting nation has provided all the
information and authorizations required by paragraphs (f)(8)(i) and
(f)(8)(ii) of this section, and has met the requirements of paragraphs
(f)(8)(i) and (f)(8)(ii) of this section.
(vi) Reconsideration of finding. The Assistant Administrator may
reconsider a finding upon a request from, and the submission of
additional information by, the harvesting nation, if the information
indicates that the nation has met the requirements under paragraphs
(f)(8)(i) and (f)(8)(ii) of this section.
(9) Intermediary nation. Except as authorized under this paragraph,
no yellowfin tuna or yellowfin tuna products harvested by purse seine in
the ETP classified under one of the HTS numbers listed in paragraph
(f)(2)(i) of this section may be imported into the United States from
any intermediary nation.
(i) An ``intermediary nation'' is a nation that exports yellowfin
tuna or yellowfin tuna products to the United States and that imports
yellowfin tuna or yellowfin tuna products that are subject to a direct
ban on importation into the United States pursuant to Section
101(a)(2)(B) of the MMPA.
(ii) Shipments of yellowfin tuna that pass through any nation (e.g.
on a 'through Bill of Lading') and are not entered for consumption in
that nation are not considered to be imports to that nation and thus,
would not cause that nation to be considered an intermediary nation
under the MMPA.
(iii) The Assistant Administrator will publish in the Federal
Register a notice announcing when NMFS has determined, based on the best
information available, that a nation is an ``intermediary nation.''
After the effective date of that notice, the import restrictions of this
paragraph shall apply.
(iv) Changing the status of intermediary nation determinations.
Imports
[[Page 36]]
from an intermediary nation of yellowfin tuna and yellowfin tuna
products classified under any of the HTS numbers in paragraph (f)(2)(i)
of this section may be imported into the United States only if the
Assistant Administrator determines, and publishes a notice of such
determination in the Federal Register, that the intermediary nation has
provided certification and reasonable proof that it has not imported in
the preceding 6 months yellowfin tuna or yellowfin tuna products that
are subject to a ban on direct importation into the United States under
Section 101(a)(2)(B) of the MMPA. At that time, the nation shall no
longer be considered an ``intermediary nation'' and these import
restrictions shall no longer apply.
(v) The Assistant Administrator will review decisions under this
paragraph upon the request of an intermediary nation. Such requests must
be accompanied by specific and detailed supporting information or
documentation indicating that a review or reconsideration is warranted.
For purposes of this paragraph, the term ``certification and reasonable
proof'' means the submission to the Assistant Administrator by a
responsible government official from the nation of a document reflecting
the nation's customs records for the preceding 6 months, together with a
certification attesting that the document is accurate.
(10) Fish refused entry. If fish is denied entry under paragraph
(f)(2) of this section, the Port Director of Customs shall refuse to
release the fish for entry into the United States.
(11) Disposition of fish refused entry into the United States. Fish
that is denied entry under paragraph (f)(2) of this section and that is
not exported under Customs supervision within 90 days shall be disposed
of under Customs laws and regulations at the importer's expense.
Provided, however, that any disposition shall not result in an
introduction into the United States of fish caught in violation of the
MMPA.
(12) Market Prohibitions. (i) It is unlawful for any person to sell,
purchase, offer for sale, transport, or ship in the United States, any
tuna or tuna products unless the tuna products are either:
(A) Dolphin-safe under subpart H of this part; or
(B) Harvested in compliance with the IDCP by vessels under the
jurisdiction of a nation that is a member of the IATTC or has initiated,
and within 6 months thereafter completes, all steps required by an
applicant nation to become a member of the IATTC.
(ii) It is unlawful for any exporter, transshipper, importer,
processor, or wholesaler/distributor to possess, sell, purchase, offer
for sale, transport, or ship in the United States, any tuna or tuna
products bearing a label or mark that refers to dolphins, porpoises, or
marine mammals unless the label or mark complies with the requirements
of 16 U.S.C. 1385(d).
(g) Penalties. Any person or vessel subject to the jurisdiction of
the United States will be subject to the penalties provided for under
the MMPA for the conduct of fishing operations in violation of these
regulations. Penalties for violating these regulations may include, but
are not limited to, civil monetary fines, permit suspension or
revocation, and reductions in current and future DMLs. Recommended
sanctions are identified in the IDCPA/DPCIA Tuna/Dolphin Civil
Administrative Penalty Schedule. Procedures for the imposition of
penalties under the MMPA are found at 15 CFR part 904.
[69 FR 55297, Sept. 13, 2004, as amended at 70 FR 19008, Apr. 12, 2005]
Sec. 216.25 Exempted marine mammals and marine mammal products.
(a) The provisions of the MMPA and these regulations shall not
apply:
(1) To any marine mammal taken before December 21, 1972 \1\, or
---------------------------------------------------------------------------
\1\ In the context of captive maintenance of marine mammals, the
only marine mammals exempted under this section are those that were
actually captured or otherwise in captivity before December 21, 1972.
---------------------------------------------------------------------------
(2) To any marine mammal product if the marine mammal portion of
such product consists solely of a marine mammal taken before such date.
(b) The prohibitions contained in Sec. 216.12(c) (3) and (4) shall
not apply to marine mammals or marine mammal
[[Page 37]]
products imported into the United States before the date on which a
notice is published in the Federal Register with respect to the
designation of the species or stock concerned as depleted or endangered.
(c) Section 216.12(b) shall not apply to articles imported into the
United States before the effective date of the foreign law making the
taking or sale, as the case may be, of such marine mammals or marine
mammal products unlawful.
[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59
FR 50376, Oct. 3, 1994]
Sec. 216.26 Collection of certain marine mammal parts without
prior authorization.
Notwithstanding any other provision of this subpart:
(a) Any bones, teeth or ivory of any dead marine mammal may be
collected from a beach or from land within\1/4\ of a mile of the ocean.
The term ocean includes bays and estuaries.
(b) Notwithstanding the provisions of subpart D, soft parts that are
sloughed, excreted, or discharged naturally by a living marine mammal in
the wild may be collected or imported for bona fide scientific research
and enhancement, provided that collection does not involve the taking of
a living marine mammal in the wild.
(c) Any marine mammal part collected under paragraph (a) of this
section or any marine mammal part collected and imported under paragraph
(b) of this section must be registered and identified, and may be
transferred or otherwise possessed, in accordance with Sec. 216.22(c).
In registering a marine mammal part collected or imported under
paragraph (b) of this section, the person who collected or imported the
part must also state the scientific research or enhancement purpose for
which the part was collected or imported.
(d) No person may purchase, sell or trade for commercial purposes
any marine mammal part collected or imported under this section.
(e) The export of parts collected without prior authorization under
paragraph (b) of this section may occur if consistent with the
provisions at Sec. 216.37(d) under subpart D.
[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61
FR 21933, May 10, 1996]
Sec. 216.27 Release, non-releasability, and disposition under special
exception permits for rehabilitated marine mammals.
(a) Release requirements. (1) Any marine mammal held for
rehabilitation must be released within six months of capture or import
unless the attending veterinarian determines that:
(i) The marine mammal might adversely affect marine mammals in the
wild;
(ii) Release of the marine mammal to the wild will not likely be
successful given the physical condition and behavior of the marine
mammal; or
(iii) More time is needed to determine whether the release of the
marine mammal to the wild will likely be successful. Releasability must
be reevaluated at intervals of no less than six months until 24 months
from capture or import, at which time there will be a rebuttable
presumption that release into the wild is not feasible.
(2) The custodian of the rehabilitated marine mammal shall provide
written notification prior to any release into the wild.
(i) Notification shall be provided to:
(A) The NMFS Regional Director at least 15 days in advance of
releasing any beached or stranded marine mammal, unless advance notice
is waived in writing by the Regional Director; or
(B) The Office Director at least 30 days in advance of releasing any
imported marine mammal.
(ii) Notification shall include the following:
(A) A description of the marine mammal, including its physical
condition and estimated age;
(B) The date and location of release; and
(C) The method and duration of transport prior to release.
(3) The Regional Director, or the Office Director as appropriate,
may:
(i) Require additional information prior to any release;
[[Page 38]]
(ii) Change the date or location of release, or the method or
duration of transport prior to release;
(iii) Impose additional conditions to improve the likelihood of
success or to monitor the success of the release; or
(iv) Require other disposition of the marine mammal.
(4) All marine mammals must be released near wild populations of the
same species, and stock if known, unless a waiver is granted by the
Regional Director or the Office Director.
(5) All marine mammals released must be tagged or marked in a manner
acceptable to the Regional Director or the Office Director. The tag
number or description of the marking must be reported to the Regional
Director or Office Director following release.
(b) Non-releasability and postponed determinations. (1) The
attending veterinarian shall provide the Regional Director or Office
Director with a written report setting forth the basis of any
determination under paragraphs (a)(1)(i) through (iii) of this section.
(2) Upon receipt of a report under paragraph (b)(1) of this section,
the Regional Director or Office Director, in their sole discretion, may:
(i) Order the release of the marine mammal;
(ii) Order continued rehabilitation for an additional 6 months; or
(iii) Order other disposition as authorized.
(3) No later than 30 days after a marine mammal is determined
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of
this section, the person with authorized custody must:
(i) Request authorization to retain or transfer custody of the
marine mammal in accordance with paragraph (c) of this section, or;
(ii) Humanely euthanize the marine mammal or arrange any other
disposition of the marine mammal authorized by the Regional Director or
Office Director.
(4) Notwithstanding any of the provisions of this section, the
Office Director may require use of a rehabilitated marine mammal for any
activity authorized under subpart D in lieu of animals taken from the
wild.
(5) Any rehabilitated beached or stranded marine mammal placed on
public display following a non-releasability determination under
paragraph (a)(1) of this section and pending disposition under paragraph
(c) of this section, or any marine mammal imported for medical treatment
otherwise unavailable and placed on public display pending disposition
after such medical treatment is concluded, must be held in captive
maintenance consistent with all requirements for public display.
(c) Disposition for a special exception purpose. (1) Upon receipt of
an authorization request made under paragraph (b)(3)(i) of this section,
or release notification under (a)(2), the Office Director may authorize
the retention or transfer of custody of the marine mammal for a special
exception purpose authorized under subpart D.
(2) The Office Director will first consider requests from a person
authorized to hold the marine mammal for rehabilitation. The Office
Director may authorize such person to retain or transfer custody of the
marine mammal for scientific research, enhancement, or public display
purposes.
(3) The Office Director may authorize retention or transfer of
custody of the marine mammal only if:
(i) Documentation has been submitted to the Office Director that the
person retaining the subject animal or the person receiving custody of
the subject animal by transfer, hereinafter referred to as the
recipient, complies with public display requirements of 16 U.S.C.
1374(c)(2)(A) or, for purposes of scientific research and enhancement,
holds an applicable permit, or an application for such a special
exception permit under Sec. 216.33 or a request for a major amendment
under Sec. 216.39 has been submitted to the Office Director and has
been found complete;
(ii) The recipient agrees to hold the marine mammal in conformance
with all applicable requirements and standards; and
(iii) The recipient acknowledges that the marine mammal is subject
to seizure by the Office Director:
(A) If, at any time pending issuance of the major amendment or
permit, the Office Director determines that seizure
[[Page 39]]
is necessary in the interest of the health or welfare of the marine
mammal;
(B) If the major amendment or permit is denied; or
(C) If the recipient is issued a notice of violation and assessment,
or is subject to permit sanctions, in accordance with 15 CFR part 904.
(4) There shall be no remuneration associated with any transfer,
provided that, the transferee may reimburse the transferor for any and
all costs associated with the rehabilitation and transport of the marine
mammal.
(5) Marine mammals undergoing rehabilitation or pending disposition
under this section shall not be subject to public display, unless such
activities are specifically authorized by the Regional Director or the
Office Director, and conducted consistent with the requirements
applicable to public display. Such marine mammals shall not be trained
for performance or be included in any aspect of a program involving
interaction with the public; and
(6) Marine mammals undergoing rehabilitation shall not be subject to
intrusive research, unless such activities are specifically authorized
by the Office Director in consultation with the Marine Mammal Commission
and its Committee of Scientific Advisors on Marine Mammals, and are
conducted pursuant to a scientific research permit.
(d) Reporting. In addition to the report required under Sec.
216.22(b), the person authorized to hold marine mammals for
rehabilitation must submit reports to the Regional Director or Office
Director regarding release or other disposition. These reports must be
provided in the form and frequency specified by the Regional Director or
Office Director.
[61 FR 21933, May 10, 1996]
Subpart D_Special Exceptions
Sec. 216.30 [Reserved]
Sec. 216.31 Definitions.
For the purpose of this subpart, the definitions set forth in 50 CFR
part 217 shall apply to all threatened and endangered marine mammals,
unless a more restrictive definition exists under the MMPA or part 216.
[61 FR 21935, May 10, 1996]
Sec. 216.32 Scope.
The regulations of this subpart apply to:
(a) All marine mammals and marine mammal parts taken or born in
captivity after December 20, 1972; and
(b) All marine mammals and marine mammal parts that are listed as
threatened or endangered under the ESA.
[61 FR 21935, May 10, 1996]
Sec. 216.33 Permit application submission, review, and decision
procedures.
(a) Application submission. Persons seeking a special exemption
permit under this subpart must submit an application to the Office
Director. The application must be signed by the applicant, and provide
in a properly formatted manner all information necessary to process the
application. Written instructions addressing information requirements
and formatting may be obtained from the Office Director upon request.
(b) Applications to export living marine mammals. For applicants
seeking a special exception permit to export living marine mammals, the
application must:
(1) Be submitted through the Convention on International Trade in
Endangered Fauna and Flora management authority of the foreign
government or, if different, the appropriate agency or agencies of the
foreign government that exercises oversight over marine mammals.
(2) Include a certification from the foreign government that:
(i) The information set forth in the application is accurate;
(ii) The laws and regulations of the foreign governmentinvolved
allow enforcement of the terms and conditions of the permit, and that
the foreign government will enforce all terms and conditions; and
(iii) The foreign government involved will afford comity to any
permit amendment, modification, suspension or revocation decision.
[[Page 40]]
(c) Initial review. (1) NMFS will notify the applicant of receipt of
the application.
(2) During the initial review, the Office Director will determine:
(i) Whether the application is complete.
(ii) Whether the proposed activity is for purposes authorized under
this subpart.
(iii) If the proposed activity is for enhancement purposes, whether
the species or stock identified in the application is in need of
enhancement for its survival or recovery and whether the proposed
activity will likely succeed in its objectives.
(iv) Whether the activities proposed are to be conducted consistent
with the permit restrictions and permit specific conditions as described
in Sec. 216.35 and Sec. 216.36(a).
(v) Whether sufficient information is included regarding the
environmental impact of the proposed activity to enable the Office
Director:
(A) To make an initial determination under the National
Environmental Policy Act (NEPA) as to whether the proposed activity is
categorically excluded from preparation of further environmental
documentation, or whether the preparation of an environmental assessment
(EA) or environmental impact statement (EIS) is appropriate or
necessary; and
(B) To prepare an EA or EIS if an initial determination is made by
the Office Director that the activity proposed is not categorically
excluded from such requirements.
(3) The Office Director may consult with the Marine Mammal
Commission (Commission) and its Committee of Scientific Advisors on
Marine Mammals (Committee) in making these initial, and any subsequent,
determinations.
(4) Incomplete applications will be returned with explanation. If
the applicant fails to resubmit a complete application or correct the
identified deficiencies within 60 days, the application will be deemed
withdrawn. Applications that propose activities inconsistent with this
subpart will be returned with explanation, and will not be considered
further.
(d) Notice of receipt and application review. (1) Upon receipt of a
valid, complete application, and the preparation of any NEPA
documentation that has been determined initially to be required, the
Office Director will publish a notice of receipt in the Federal
Register. The notice will:
(i) Summarize the application, including:
(A) The purpose of the request;
(B) The species and number of marine mammals;
(C) The type and manner of special exception activity proposed;
(D) The location(s) in which the marine mammals will be taken, from
which they will be imported, or to which they will be exported; and
(E) The requested period of the permit.
(ii) List where the application is available for review.
(iii) Invite interested parties to submit written comments
concerning the application within 30 days of the date of the notice.
(iv) Include a NEPA statement that an initial determination has been
made that the activity proposed is categorically excluded from the
requirement to prepare an EA or EIS, that an EA was prepared resulting
in a finding of no significant impact, or that a final EIS has been
prepared and is available for review.
(2) The Office Director will forward a copy of the complete
application to the Commission for comment. If no comments are received
within 45 days (or such longer time as the Office Director may
establish) the Office Director will consider the Commission to have no
objection to issuing a permit.
(3) The Office Director may consult with any other person,
institution, or agency concerning the application.
(4) Within 30 days of publication of the notice of receipt in the
Federal Register, any interested party may submit written comments or
may request a public hearing on the application.
(5) If the Office Director deems it advisable, the Office Director
may hold a public hearing within 60 days of publication of the notice of
receipt in the Federal Register. Notice of the date, time, and place of
the public hearing
[[Page 41]]
will be published in the Federal Register not less than 15 days in
advance of the public hearing. Any interested person may appear in
person or through representatives and may submit any relevant material,
data, views, or comments. A summary record of the hearing will be kept.
(6) The Office Director may extend the period during which any
interested party may submit written comments. Notice of the extension
must be published in the Federal Register within 60 days of publication
of the notice of receipt in the Federal Register.
(7) If, after publishing a notice of receipt, the Office Director
determines on the basis of new information that an EA or EIS must be
prepared, the Office Director must deny the permit unless an EA is
prepared with a finding of no significant impact. If a permit is denied
under these circumstances the application may be resubmitted with
information sufficient to prepare an EA or EIS, and will be processed as
a new application.
(e) Issuance or denial procedures. (1) Within 30 days of the close
of the public hearing or, if no public hearing is held, within 30 days
of the close of the public comment period, the Office Director will
issue or deny a special exception permit.
(2) The decision to issue or deny a permit will be based upon:
(i) All relevant issuance criteria set forth at Sec. 216.34;
(ii) All purpose-specific issuance criteria as appropriate set forth
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
(iii) All comments received or views solicited on the permit
application; and
(iv) Any other information or data that the Office Director deems
relevant.
(3) If the permit is issued, upon receipt, the holder must date and
sign the permit, and return a copy of the original to the Office
Director. The permit shall be effective upon the permit holder's signing
of the permit. In signing the permit, the holder:
(i) Agrees to abide by all terms and conditions set forth in the
permit, and all restrictions and relevant regulations under this
subpart; and
(ii) Acknowledges that the authority to conduct certain activities
specified in the permit is conditional and subject to authorization by
the Office Director.
(4) Notice of the decision of the Office Director shall be published
in the Federal Register within 10 days after the date of permit issuance
or denial and shall indicate where copies of the permit, if issued, may
be reviewed or obtained. If the permit issued involves marine mammals
listed as endangered or threatened under the ESA, the notice shall
include a finding by the Office Director that the permit:
(i) Was applied for in good faith;
(ii) If exercised, will not operate to the disadvantage of such
endangered or threatened species; and
(iii) Is consistent with the purposes and policy set forth in
section 2 of the ESA.
(5) If the permit is denied, the Office Director shall provide the
applicant with an explanation for the denial.
(6) Under the MMPA, the Office Director may issue a permit for
scientific research before the end of the public comment period if
delaying issuance could result in injury to a species, stock, or
individual, or in loss of unique research opportunities. The Office
Director also may waive the 30-day comment period required under the ESA
in an emergency situation where the health or life of an endangered or
threatened marine mammal is threatened and no reasonable alternative is
available. If a permit is issued under these circumstances, notice of
such issuance before the end of the comment period shall be published in
the Federal Register within 10 days of issuance.
(7) The applicant or any party opposed to a permit may seek judicial
review of the terms and conditions of such permit or of a decision to
deny such permit. Review may be obtained by filing a petition for review
with the appropriate U.S. District Court as provided for by law.
[61 FR 21935, May 10, 1996]
Sec. 216.34 Issuance criteria.
(a) For the Office Director to issue any permit under this subpart,
the applicant must demonstrate that:
[[Page 42]]
(1) The proposed activity is humane and does not present any
unnecessary risks to the health and welfare of marine mammals;
(2) The proposed activity is consistent with all restrictions set
forth at Sec. 216.35 and any purpose-specific restrictions as
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
(3) The proposed activity, if it involves endangered or threatened
marine mammals, will be conducted consistent with the purposes and
policies set forth in section 2 of the ESA;
(4) The proposed activity by itself or in combination with other
activities, will not likely have a significant adverse impact on the
species or stock;
(5) Whether the applicant's expertise, facilities, and resources are
adequate to accomplish successfully the objectives and activities stated
in the application;
(6) If a live animal will be held captive or transported, the
applicant's qualifications, facilities, and resources are adequate for
the proper care and maintenance of the marine mammal; and
(7) Any requested import or export will not likely result in the
taking of marine mammals or marine mammal parts beyond those authorized
by the permit.
(b) The opinions or views of scientists or other persons or
organizations knowledgeable of the marine mammals that are the subject
of the application or of other matters germane to the application will
be considered.
[61 FR 21936, May 10, 1996]
Sec. 216.35 Permit restrictions.
The following restrictions shall apply to all permits issued under
this subpart:
(a) The taking, importation, export, or other permitted activity
involving marine mammals and marine mammal parts shall comply with the
regulations of this subpart.
(b) The maximum period of any special exception permit issued, or
any major amendment granted, is five years from the effective date of
the permit or major amendment. In accordance with the provisions of
Sec. 216.39, the period of a permit may be extended by a minor
amendment up to 12 months beyond that established in the original
permit.
(c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals
or marine mammal parts imported under the authority of a permit must be
taken or imported in a humane manner, and in compliance with the Acts
and any applicable foreign law. Importation of marine mammals and marine
mammal parts is subject to the provisions of 50 CFR part 14.
(d) The permit holder shall not take from the wild any marine mammal
which at the time of taking is either unweaned or less than eight months
old, or is a part of a mother-calf/pup pair, unless such take is
specifically authorized in the conditions of the special exception
permit. Additionally, the permit holder shall not import any marine
mammal that is pregnant or lactating at the time of taking or import, or
is unweaned or less than eight months old unless such import is
specifically authorized in the conditions of the special exception
permit.
(e) Captive marine mammals shall not be released into the wild
unless specifically authorized by the Office Director under a scientific
research or enhancement permit.
(f) The permit holder is responsible for all activities of any
individual who is operating under the authority of the permit;
(g) Individuals conducting activities authorized under the permit
must possess qualifications commensurate with their duties and
responsibilities, or must be under the direct supervision of a person
with such qualifications;
(h) Persons who require state or Federal licenses to conduct
activities authorized under the permit must be duly licensed when
undertaking such activities;
(i) Special exception permits are not transferable or assignable to
any other person, and a permit holder may not require any direct or
indirect compensation from another person in return for requesting
authorization for such person to conduct the taking, import, or export
activities authorized under the subject permit;
[[Page 43]]
(j) The permit holder or designated agent shall possess a copy of
the permit when engaged in a permitted activity, when the marine mammal
is in transit incidental to such activity, and whenever marine mammals
or marine mammal parts are in the possession of the permit holder or
agent. A copy of the permit shall be affixed to any container, package,
enclosure, or other means of containment, in which the marine mammals or
marine mammal parts are placed for purposes of transit, supervision, or
care. For marine mammals held captive and marine mammal parts in
storage, a copy of the permit shall be kept on file in the holding or
storage facility.
[61 FR 21936, May 10, 1996]
Sec. 216.36 Permit conditions.
(a) Specific conditions. (1) Permits issued under this subpart shall
contain specific terms and conditions deemed appropriate by the Office
Director, including, but not limited to:
(i) The number and species of marine mammals that are authorized to
be taken, imported, exported, or otherwise affected;
(ii) The manner in which marine mammals may be taken according to
type of take;
(iii) The location(s) in which the marine mammals may be taken, from
which they may be imported, or to which they may be exported, as
applicable, and, for endangered or threatened marine mammal species to
be imported or exported, the port of entry or export;
(iv) The period during which the permit is valid.
(2) [Reserved]
(b) Other conditions. In addition to the specific conditions imposed
pursuant to paragraph (a) of this section, the Office Director shall
specify any other permit conditions deemed appropriate.
[61 FR 21937, May 10, 1996]
Sec. 216.37 Marine mammal parts.
With respect to marine mammal parts acquired by take or import
authorized under a permit issued under this subpart:
(a) Marine mammal parts are transferrable if:
(1) The person transferring the part receives no remuneration of any
kind for the marine mammal part;
(2) The person receiving the marine mammal part is:
(i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any
other governmental agency with conservation and management
responsibilities, who receives the part in the course of their official
duties;
(ii) A holder of a special exception permit which authorizes the
take, import, or other activity involving the possession of a marine
mammal part of the same species as the subject part; or
(iii) In the case of marine mammal parts from a species that is not
depleted, endangered or threatened, a person who is authorized under
section 112(c) of the MMPA and subpart C of this part to take or import
marine mammals or marine mammal parts;
(iv) Any other person specifically authorized by the Regional
Director, consistent with the requirements of paragraphs (a)(1) and
(a)(3) through (6) of this section.
(3) The marine mammal part is transferred for the purpose of
scientific research, maintenance in a properly curated, professionally
accredited scientific collection, or education, provided that, for
transfers for educational purposes, the recipient is a museum,
educational institution or equivalent that will ensure that the part is
available to the public as part of an educational program;
(4) A unique number assigned by the permit holder is marked on or
affixed to the marine mammal part or container;
(5) The person receiving the marine mammal part agrees that, as a
condition of receipt, subsequent transfers may only occur subject to the
provisions of paragraph (a) of this section; and
(6) Within 30 days after the transfer, the person transferring the
marine mammal part notifies the Regional Director of the transfer,
including a description of the part, the person to whom the part was
transferred, the purpose of the transfer, certification that the
recipient has agreed to comply with the requirements of paragraph (a) of
this section for subsequent transfers,
[[Page 44]]
and, if applicable, the recipient's permit number.
(b) Marine mammal parts may be loaned to another person for a
purpose described in paragraph (a)(3) of this section and without the
agreement and notification required under paragraphs (a)(5) and (6) of
this section, if:
(1) A record of the loan is maintained; and
(2) The loan is for not more than one year. Loans for a period
greater than 12 months, including loan extensions or renewals, require
notification of the Regional Director under paragraph (a)(6).
(c) Unless other disposition is specified in the permit, a holder of
a special exception permit may retain marine mammal parts not destroyed
or otherwise disposed of during or after a scientific research or
enhancement activity, if such marine mammal parts are:
(1) Maintained as part of a properly curated, professionally
accredited collection; or
(2) Made available for purposes of scientific research or
enhancement at the request of the Office Director.
(d) Marine mammal parts may be exported and subsequently reimported
by a permit holder or subsequent authorized recipient, for the purpose
of scientific research, maintenance in a properly curated,
professionally accredited scientific collection, or education, provided
that:
(1) The permit holder or other person receives no remuneration for
the marine mammal part;
(2) A unique number assigned by the permit holder is marked on or
affixed to the marine mammal specimen or container;
(3) The marine mammal part is exported or reimported in compliance
with all applicable domestic and foreign laws;
(4) If exported or reimported for educational purposes, the
recipient is a museum, educational institution, or equivalent that will
ensure that the part is available to the public as part of an
educational program; and
(5) Special reports are submitted within 30 days after both export
and reimport as required by the Office Director under Sec. 216.38.
[61 FR 21937, May 10, 1996]
Sec. 216.38 Reporting.
All permit holders must submit annual, final, and special reports in
accordance with the requirements established in the permit, and any
reporting format established by the Office Director.
[61 FR 21937, May 10, 1996]
Sec. 216.39 Permit amendments.
(a) General. Special exception permits may be amended by the Office
Director. Major and minor amendments may be made to permits in response
to, or independent of, a request from the permit holder. Amendments must
be consistent with the Acts and comply with the applicable provisions of
this subpart.
(1) A major amendment means any change to the permit specific
conditions under Sec. 216.36(a) regarding:
(i) The number and species of marine mammals that are authorized to
be taken, imported, exported, or otherwise affected;
(ii) The manner in which these marine mammals may be taken,
imported, exported, or otherwise affected, if the proposed change may
result in an increased level of take or risk of adverse impact;
(iii) The location(s) in which the marine mammals may be taken, from
which they may be imported, and to which they may be exported, as
applicable; and
(iv) The duration of the permit, if the proposed extension would
extend the duration of the permit more than 12 months beyond that
established in the original permit.
(2) A minor amendment means any amendment that does not constitute a
major amendment.
(b) Amendment requests and proposals. (1) Requests by a permit
holder for an amendment must be submitted in writing and include the
following:
(i) The purpose and nature of the amendment;
(ii) Information, not previously submitted as part of the permit
application or subsequent reports, necessary to determine whether the
amendment satisfies all issuance criteria set forth at Sec. 216.34,
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
[[Page 45]]
(iii) Any additional information required by the Office Director for
purposes of reviewing the proposed amendment.
(2) If an amendment is proposed by the Office Director, the permit
holder will be notified of the proposed amendment, together with an
explanation.
(c) Review of proposed amendments--(1) Major amendments. The
provisions of Sec. 216.33(d) and (e) governing notice of receipt,
review and decision shall apply to all proposed major amendments.
(2) Minor amendments. (i) After reviewing all appropriate
information, the Office Director will provide the permit holder with
written notice of the decision on a proposed or requested amendment,
together with an explanation for the decision.
(ii) If the minor amendment extends the duration of the permit 12
months or less from that established in the original permit, notice of
the minor amendment will be published in the Federal Register within 10
days from the date of the Office Director's decision.
(iii) A minor amendment will be effective upon a final decision by
the Office Director.
[61 FR 21937, May 10, 1996]
Sec. 216.40 Penalties and permit sanctions.
(a) Any person who violates any provision of this subpart or permit
issued thereunder is subject to civil and criminal penalties, permit
sanctions and forfeiture as authorized under the Acts, and 15 CFR part
904.
(b) All special exception permits are subject to suspension,
revocation, modification and denial in accordance with the provisions of
subpart D of 15 CFR part 904.
[61 FR 21938, May 10, 1996]
Sec. 216.41 Permits for scientific research and enhancement.
In addition to the requirements under Sec. Sec. 216.33 through
216.38, permits for scientific research and enhancement are governed by
the following requirements:
(a) Applicant. (1) For each application submitted under this
section, the applicant shall be the principal investigator responsible
for the overall research or enhancement activity. If the research or
enhancement activity will involve a periodic change in the principal
investigator or is otherwise controlled by and dependent upon another
entity, the applicant may be the institution, governmental entity, or
corporation responsible for supervision of the principal investigator.
(2) For any scientific research involving captive maintenance, the
application must include supporting documentation from the person
responsible for the facility or other temporary enclosure.
(b) Issuance Criteria. For the Office Director to issue any
scientific research or enhancement permit, the applicant must
demonstrate that:
(1) The proposed activity furthers a bona fide scientific or
enhancement purpose;
(2) If the lethal taking of marine mammals is proposed:
(i) Non-lethal methods for conducting the research are not feasible;
and
(ii) For depleted, endangered, or threatened species, the results
will directly benefit that species or stock, or will fulfill a
critically important research need.
(3) Any permanent removal of a marine mammal from the wild is
consistent with any applicable quota established by the Office Director.
(4) The proposed research will not likely have significant adverse
effects on any other component of the marine ecosystem of which the
affected species or stock is a part.
(5) For species or stocks designated or proposed to be designated as
depleted, or listed or proposed to be listed as endangered or
threatened:
(i) The proposed research cannot be accomplished using a species or
stock that is not designated or proposed to be designated as depleted,
or listed or proposed to be listed as threatened or endangered;
(ii) The proposed research, by itself or in combination with other
activities will not likely have a long-term direct or indirect adverse
impact on the species or stock;
(iii) The proposed research will either:
[[Page 46]]
(A) Contribute to fulfilling a research need or objective identified
in a species recovery or conservation plan, or if there is no
conservation or recovery plan in place, a research need or objective
identified by the Office Director in stock assessments established under
section 117 of the MMPA;
(B) Contribute significantly to understanding the basic biology or
ecology of the species or stock, or to identifying, evaluating, or
resolving conservation problems for the species or stock; or
(C) Contribute significantly to fulfilling a critically important
research need.
(6) For proposed enhancement activities:
(i) Only living marine mammals and marine mammal parts necessary for
enhancement of the survival, recovery, or propagation of the affected
species or stock may be taken, imported, exported, or otherwise affected
under the authority of an enhancement permit. Marine mammal parts would
include in this regard clinical specimens or other biological samples
required for the conduct of breeding programs or the diagnosis or
treatment of disease.
(ii) The activity will likely contribute significantly to
maintaining or increasing distribution or abundance, enhancing the
health or welfare of the species or stock, or ensuring the survival or
recovery of the affected species or stock in the wild.
(iii) The activity is consistent with:
(A) An approved conservation plan developed under section 115(b) of
the MMPA or recovery plan developed under section 4(f) of the ESA for
the species or stock; or
(B) If there is no conservation or recovery plan, with the Office
Director's evaluation of the actions required to enhance the survival or
recovery of the species or stock in light of the factors that would be
addressed in a conservation or recovery plan.
(iv) An enhancement permit may authorize the captive maintenance of
a marine mammal from a threatened, endangered, or depleted species or
stock only if the Office Director determines that:
(A) The proposed captive maintenance will likely contribute directly
to the survival or recovery of the species or stock by maintaining a
viable gene pool, increasing productivity, providing necessary
biological information, or establishing animal reserves required to
support directly these objectives; and
(B) The expected benefit to the species or stock outweighs the
expected benefits of alternatives that do not require removal of marine
mammals from the wild.
(v) The Office Director may authorize the public display of marine
mammals held under the authority of an enhancement permit only if:
(A) The public display is incidental to the authorized captive
maintenance;
(B) The public display will not interfere with the attainment of the
survival or recovery objectives;
(C) The marine mammals will be held consistent with all requirements
and standards that are applicable to marine mammals held under the
authority of the Acts and the Animal Welfare Act, unless the Office
Director determines that an exception is necessary to implement an
essential enhancement activity; and
(D) The marine mammals will be excluded from any interactive program
and will not be trained for performance.
(vi) The Office Director may authorize non-intrusive scientific
research to be conducted while a marine mammal is held under the
authority of an enhancement permit, only if such scientific research:
(A) Is incidental to the permitted enhancement activities; and
(B) Will not interfere with the attainment of the survival or
recovery objectives.
(c) Restrictions. (1) The following restrictions apply to all
scientific research permits issued under this subpart:
(i) Research activities must be conducted in the manner authorized
in the permit.
(ii) Research results shall be published or otherwise made available
to the scientific community in a reasonable period of time.
(iii) Research activities must be conducted under the direct
supervision of
[[Page 47]]
the principal investigator or a co-investigator identified in the
permit.
(iv) Personnel involved in research activities shall be reasonable
in number and limited to:
(A) Individuals who perform a function directly supportive of and
necessary to the permitted research activity; and
(B) Support personnel included for the purpose of training or as
backup personnel for persons described in paragraph (c)(1)(iv)(A).
(v) Any marine mammal part imported under the authority of a
scientific research permit must not have been obtained as the result of
a lethal taking that would be inconsistent with the Acts, unless
authorized by the Office Director.
(vi) Marine mammals held under a permit for scientific research
shall not be placed on public display, included in an interactive
program or activity, or trained for performance unless such activities:
(A) Are necessary to address scientific research objectives and have
been specifically authorized by the Office Director under the scientific
research permit; and
(B) Are conducted incidental to and do not in any way interfere with
the permitted scientific research; and
(C) Are conducted in a manner consistent with provisions applicable
to public display, unless exceptions are specifically authorized by the
Office Director.
(vii) Any activity conducted incidental to the authorized scientific
research activity must not involve any taking of marine mammals beyond
what is necessary to conduct the research (i.e., educational and
commercial photography).
(2) Any marine mammal or progeny held in captive maintenance under
an enhancement permit shall be returned to its natural habitat as soon
as feasible, consistent with the terms of the enhancement permit and the
objectives of an approved conservation or recovery plan. In accordance
with section 10(j) of the ESA, the Office Director may authorize the
release of any population of an endangered or threatened species outside
the current range of such species if the Office Director determines that
such release will further the conservation of such species.
[61 FR 21938, May 10, 1996]
Sec. 216.42 Photography. [Reserved]
Sec. 216.43 Public display. [Reserved]
Sec. 216.44 Applicability/transition.
(a) General. The regulations of this subpart are applicable to all
persons, including persons holding permits or other authorizing
documents issued before June 10, 1996, by NMFS for the take, import,
export, or conduct of any otherwise prohibited activity involving a
marine mammal or marine mammal part for special exception purposes.
(b) Scientific research. Any intrusive research as defined in Sec.
216.3, initiated after June 10, 1996, must be authorized under a
scientific research permit. Intrusive research authorized by the Office
Director to be conducted on captive marine mammals held for public
display purposes prior to June 10, 1996, must be authorized under a
scientific research permit one year after June 10, 1996.
[61 FR 21939, May 10, 1996]
Sec. 216.45 General Authorization for Level B harassment for
scientific research.
(a) General Authorization. (1) Persons are authorized under section
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B
harassment, as defined in Sec. 216.3, for purposes of bona fide
scientific research Provided, That:
(i) They submit a letter of intent in accordance with the
requirements of paragraph (b) of this section, receive confirmation that
the General Authorization applies in accordance with paragraph (c) of
this section, and comply with the terms and conditions of paragraph (d)
of this section; or
(ii) If such marine mammals are listed as endangered or threatened
under the ESA, they have been issued a permit under Section 10(a)(1)(A)
of the ESA and implementing regulations at 50 CFR parts 217-227,
particularly at Sec. 222.23 through Sec. 222.28, to take marine
mammals in the wild for the purpose of scientific research, the taking
authorized under the permit involves such
[[Page 48]]
Level B harassment of marine mammals or marine mammal stocks, and they
comply with the terms and conditions of that permit.
(2) Except as provided under paragraph (a)(1)(ii) of this section,
no taking, including harassment, of marine mammals listed as threatened
or endangered under the ESA is authorized under the General
Authorization. Marine mammals listed as endangered or threatened under
the ESA may be taken for purposes of scientific research only after
issuance of a permit for such activities pursuant to the ESA.
(3) The following types of research activities will likely qualify
for inclusion under the General Authorization: Photo-identification
studies, behavioral observations, and vessel and aerial population
surveys (except aerial surveys over pinniped rookeries at altitudes of
less than 1,000 ft).
(b) Letter of intent. Except as provided under paragraph (a)(1)(ii)
of this section, any person intending to take marine mammals in the wild
by Level B harassment for purposes of bona fide scientific research
under the General Authorization must submit, at least 60 days before
commencement of such research, a letter of intent by certified return/
receipt mail to the Chief, Permits Division, F/PR1, Office of Protected
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
(1) The letter of intent must be submitted by the principal
investigator (who shall be deemed the applicant). For purposes of this
section, the principal investigator is the individual who is responsible
for the overall research project, or the institution, governmental
entity, or corporation responsible for supervision of the principal
investigator.
(2) The letter of intent must include the following information:
(i) The name, address, telephone number, qualifications and
experience of the applicant and any co-investigator(s) to be conducting
the proposed research, and a curriculum vitae for each, including a list
of publications by each such investigator relevant to the objectives,
methodology, or other aspects of the proposed research;
(ii) The species or stocks of marine mammals (common and scientific
names) that are the subject of the scientific research and any other
species or stock of marine mammals that may be harassed during the
conduct of the research;
(iii) The geographic location(s) in which the research is to be
conducted, e.g., geographic name or lat./long.;
(iv) The period(s) of time over which the research will be conducted
(up to five years), including the field season(s) for the research, if
applicable;
(v) The purpose of the research, including a description of how the
proposed research qualifies as bona fide research as defined in Sec.
216.3; and
(vi) The methods to be used to conduct the research.
(3) The letter of intent must be signed, dated, and certified by the
applicant as follows:
In accordance with section 104(c)(3)(C) of the Marine Mammal
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and
implementing regulations (50 CFR part 216), I hereby notify the National
Marine Fisheries Service of my intent to conduct research involving only
Level B harassment on marine mammals in the wild, and request
confirmation that the General Authorization for Level B Harassment for
Scientific Research applies to the proposed research as described
herein. I certify that the information in this letter of intent is
complete, true, and correct to the best of my knowledge and belief, and
I understand that any false statement may subject me to the criminal
penalties of 18 U.S.C. 1001, or penalties under the MMPA and
implementing regulations. I acknowledge and accept that authority to
conduct scientific research on marine mammals in the wild under the
General Authorization is a limited conditional authority restricted to
Level B harassment only, and that any other take of marine mammals,
including the conduct of any activity that has the potential to injure
marine mammals (i.e., Level A harassment), may subject me to penalties
under the MMPA and implementing regulations.
(c) Confirmation that the General Authorization applies or
notification of permit requirement. (1) Not later than 30 days after
receipt of a letter of intent as described in paragraph (b) of this
section, the Chief, Permits Division, NMFS will issue a letter to the
applicant either:
[[Page 49]]
(i) Confirming that the General Authorization applies to the
proposed scientific research as described in the letter of intent;
(ii) Notifying the applicant that all or part of the research
described in the letter of intent is likely to result in a taking of a
marine mammal in the wild involving other than Level B harassment and,
as a result, cannot be conducted under the General Authorization, and
that a scientific research permit is required to conduct all or part of
the subject research; or
(iii) Notifying the applicant that the letter of intent fails to
provide sufficient information and providing a description of the
deficiencies, or notifying the applicant that the proposed research as
described in the letter of intent is not bona fide research as defined
in Sec. 216.3.
(2) A copy of each letter of intent and letter confirming that the
General Authorization applies or notifying the applicant that it does
not apply will be forwarded to the Marine Mammal Commission.
(3) Periodically, NMFS will publish a summary document in the
Federal Register notifying the public of letters of confirmation issued.
(d) Terms and conditions. Persons issued letters of confirmation in
accordance with paragraph (c) of this section are responsible for
complying with the following terms and conditions:
(1) Activities are limited to those conducted for the purposes, by
the means, in the locations, and during the periods of time described in
the letter of intent and acknowledged as authorized under the General
Authorization in the confirmation letter sent pursuant to paragraph (c)
of this section;
(2) Annual reports of activities conducted under the General
Authorization must be submitted to the Chief, Permits Division (address
listed in paragraph (b) of this section) within 90 days of completion of
the last field season(s) during the calendar year or, if the research is
not conducted during a defined field season, no later than 90 days after
the anniversary date of the letter of confirmation issued under
paragraph (c) of this section. Annual reports must include:
(i) A summary of research activities conducted;
(ii) Identification of the species and number of each species taken
by Level B harassment;
(iii) An evaluation of the progress made in meeting the objectives
of the research as described in the letter of intent; and
(iv) Any incidental scientific, educational, or commercial uses of
photographs, videotape, and film obtained as a result of or incidental
to the research and if so, names of all photographers.
(3) Authorization to conduct research under the General
Authorization is for the period(s) of time identified in the letter of
intent or for a period of 5 years from the date of the letter of
confirmation issued under paragraph (c) of this section, whichever is
less, unless extended by the Director or modified, suspended, or revoked
in accordance with paragraph (e) of this section;
(4) Activities conducted under the General Authorization may only be
conducted under the on-site supervision of the principal investigator or
co-investigator(s) named in the letter of intent. All personnel involved
in the conduct of activities under the General Authorization must
perform a function directly supportive of and necessary for the research
being conducted, or be one of a reasonable number of support personnel
included for the purpose of training or as back-up personnel;
(5) The principal investigator must notify the appropriate Regional
Director, NMFS, (Regional Director) in writing at least 2 weeks before
initiation of on-site activities. The Regional Director shall consider
this information in efforts to coordinate field research activities to
minimize adverse impacts on marine mammals in the wild. The principal
investigator must cooperate with coordination efforts by the Regional
Director in this regard;
(6) If research activities result in a taking which exceeds Level B
harassment, the applicant shall:
(i) Report the taking within 12 hours to the Director, Office of
Protected Resources, or his designee as set forth in the letter
authorizing research; and
(ii) Temporarily discontinue for 72 hours all field research
activities that
[[Page 50]]
resulted in the taking. During this time period, the applicant shall
consult with NMFS as to the circumstances surrounding the taking and any
precautions necessary to prevent future taking, and may agree to amend
the research protocol, as deemed necessary by NMFS.
(7) NMFS may review scientific research conducted pursuant to the
General Authorization. If requested by NMFS, the applicant must
cooperate with any such review and shall:
(i) Allow any employee of NOAA or any other person designated by the
Director, Office of Protected Resources to observe research activities;
and
(ii) Provide any documents or other information relating to the
scientific research;
(8) Any photographs, videotape, or film obtained during the conduct
of research under the General Authorization must be identified by a
statement that refers to the General Authorization or ESA permit number,
and includes the file number provided by NMFS in the confirmation
letter, the name of the photographer, and the date the image was taken.
This statement must accompany the image(s) in all subsequent uses or
sales. The annual report must note incidental scientific, educational,
or commercial uses of the images, and if there are any such uses, the
names of all photographers; and
(9) Persons conducting scientific research under authority of the
General Authorization may not transfer or assign any authority granted
thereunder to any other person.
(e) Suspension, revocation, or modification. (1) NMFS may suspend,
revoke, or modify the authority to conduct scientific research under the
General Authorization if:
(i) The letter of intent included false information or statements of
a material nature;
(ii) The research does not constitute bona fide scientific research;
(iii) Research activities result in takings of marine mammals other
than by Level B harassment;
(iv) Research activities differ from those described in the letter
of intent submitted by the applicant and letter of confirmation issued
by NMFS; or
(v) The applicant violates any term or condition set forth in this
section.
(2) Any suspension, revocation, or modification is subject to the
requirements of 15 CFR part 904.
[59 FR 50376, Oct. 3, 1994]
Sec. 216.46 U.S. citizens on foreign flag vessels operating under
the International Dolphin Conservation Program.
The MMPA's provisions do not apply to a citizen of the United States
who incidentally takes any marine mammal during fishing operations in
the ETP which are outside the U.S. exclusive economic zone (as defined
in section 3 of the Magnuson-Stevens Fishery Conservation and Management
Act (16 U.S.C. 1802)), while employed on a fishing vessel of a
harvesting nation that is participating in, and in compliance with, the
IDCP.
[65 FR 56, Jan. 3, 2000]
Sec. 216.47 Access to marine mammal tissue, analyses, and data.
(a) Applications for the National Marine Mammal Tissue Bank samples
(NMMTB). (1) A principal investigator, contributor or holder of a
scientific research permit issued in accordance with the provisions of
this subpart may apply for access to a tissue specimen sample in the
NMMTB. Applicants for tissue specimen samples from the NMMTB must submit
a signed written request with attached study plan to the Marine Mammal
Health and Stranding Response Program (MMHSRP) Program Manager, Office
of Protected Resources, NMFS. The written request must include:
(i) A clear and concise statement of the proposed use of the banked
tissue specimen. The applicant must demonstrate that the proposed use of
the banked tissue is consistent with the goals of the NMMTB and the
MMHSRP.
(A) The goals of the MMHSRP are to facilitate the collection and
dissemination of reference data on marine mammals and health trends of
marine mammal populations in the wild; to correlate the health of marine
mammals and marine mammal populations in the wild with available data on
physical, chemical, and biological environmental
[[Page 51]]
parameters; and to coordinate effective responses to unusual mortality
events.
(B) The goal of the NMMTB is to maintain quality controlled marine
mammal tissues that will permit retrospective analyses to determine
environmental trends of contaminants and other analytes of interest and
that will provide the highest quality samples for analyses using new and
innovative techniques.
(ii) A copy of the applicant's scientific research permit. The
applicant must demonstrate that the proposed use of the banked tissue is
authorized by the permit;
(iii) Name of principal investigator, official title, and affiliated
research or academic organization;
(iv) Specific tissue sample and quantity desired;
(v) Research facility where analyses will be conducted. The
applicant must demonstrate that the research facility will follow the
Analytical Quality Assurance (AQA) program, which was designed to ensure
the accuracy, precision, level of detection, and intercompatibility of
data resulting from chemical analyses of marine mammal tissues. The AQA
consists of annual interlaboratory comparisons and the development of
control materials and standard reference materials for marine mammal
tissues;
(vi) Verification that funding is available to conduct the research;
(vii) Estimated date for completion of research, and schedule/date
of subsequent reports;
(viii) Agreement that all research findings based on use of the
banked tissue will be reported to the NMMTB, MMHSRP Program Manager and
the contributor; and the sequences of tissue specimen samples that are
used/released for genetic analyses (DNA sequencing) will be archived in
the National Center for biotechnology Information's GenBank. Sequence
accessions in GenBank should document the source, citing a NIST field
number that indentifies the animal; and
(ix) Agreement that credit and acknowledgment will be given to U.S.
Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National
Institute of Standards and Technology (NIST), the Minerals Management
Service (MMS), NMFS, the NMMTB, and the collector for use of banked
tissues.
(2) The applicant shall insert the following acknowledgment in all
publications, abstracts, or presentations based on research using the
banked tissue:
The specimens used in this study were collected by [the contributor]
and provided by the National Marine Mammal Tissue Bank, which is
maintained in the National Biomonitoring Specimen Bank at NIST and which
is operated under the direction of NMFS with the collaboration of MMS,
USGS, USFWS, and NIST through the Marine Mammal Health and Stranding
Response Program [and the Alaska Marine Mammal Tissue Archival Project
if the samples are from Alaska].
(3) Upon submission of a complete application, the MMHSRP Program
Manager will send the request and attached study plan to the following
entities which will function as the review committee:
(i) Appropriate Federal agency (NMFS or USFWS) marine mammal
management office for that particular species; and
(ii) Representatives of the NMMTB Collaborating Agencies (NMFS,
USFS, USGS Biological Resources Division, and NIST) If no member of the
review committee is an expert in the field that is related to the
proposed research activity, any member may request an outside review of
the proposal, which may be outside of NMFS or USFWS but within the
Federal Government.
(4) The MMHSRP Program Manager will send the request and attached
study plan to any contributor(s) of the tissue specimen sample. The
contributor(s) of the sample may submit comments on the proposed
research activity to the Director, Office of Protected Resources within
30 days of the date that the request was sent to the contributor(s).
(5) The USFWS Representative of the NMMTB Collaborating Agencies
will be chair of review committees for requests involving species
managed by the DOI. The MMHSRP Program Manager will be chair of all
other review committees.
(6) Each committee chair will provide recommendations on the request
and an evaluation of the study plan to the
[[Page 52]]
Director, Office of Protected Resources, NMFS.
(7) The Director, Office of Protected Resources, NMFS, will make the
final decision on release of the samples based on the advice provided by
the review committee, comments received from any contributor(s) of the
sample within the time provided in paragraph (a)(4) of this section, and
determination that the proposed use of the banked tissue specimen is
consistent with the goals of the MMHSRP and the NMMTB. The Director will
send a written decision to the applicant and send copies to all review
committee members. If the samples are released, the response will
indicate whether the samples have been homogenized and, if not, the
homogenization schedule.
(8) The applicant will bear all shipping and homogenization costs
related to use of any specimens from the NMMTB.
(9) The applicant will dispose of the tissue specimen sample
consistent with the provisions of the applicant's scientific research
permit after the research is completed, unless the requester submits
another request and receives approval pursuant to this section. The
request must be submitted within three months after the original project
has been completed.
(b) [Reserved]
[69 FR 41979, July 13, 2004]
Sec. Sec. 216.48-216.49 [Reserved]
Subpart E_Designated Ports
Sec. 216.50 Importation at designated ports.
(a) Any marine mammal or marine mammal product which is subject to
the jurisdiction of the National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of Commerce and is
intended for importation into the United States shall be subject to the
provisions of 50 CFR part 14.
(b) For the information of importers, designated ports of entry for
the United States are:
New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.
(c) Additionally, marine mammals or marine mammal products which are
entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the
Virgin Islands and which are not to be forwarded or transhipped within
the United States may be imported through the following ports:
Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.
(d) Importers are advised to see 50 CFR part 14 for importation
requirements and information.
[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]
Subpart F_Pribilof Islands, Taking for Subsistence Purposes
Sec. 216.71 Allowable take of fur seals.
Pribilovians may take fur seals on the Pribilof Islands if such
taking is
(a) For subsistence uses, and
(b) Not accomplished in a wasteful manner.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.72 Restrictions on taking.
(a) The harvests of seals on St. Paul and St. George Islands shall
be treated independently for the purposes of this section. Any
suspension, termination, or extension of the harvest is applicable only
to the island for which it is issued.
(b) By April 1 of every third year, beginning April 1994, the
Assistant Administrator will publish in the Federal Register a summary
of the preceding 3 years of harvesting and a discussion of the number of
seals expected to be taken annually over the next 3
[[Page 53]]
years to satisfy the subsistence requirements of each island. This
discussion will include an assessment of factors and conditions on St.
Paul and St. George Islands that influence the need by Pribilof Aleuts
to take seals for subsistence uses and an assessment of any changes to
those conditions indicating that the number of seals that may be taken
for subsistence each year should be made higher or lower. Following a
30-day public comment period, a final notification of the expected
annual harvest levels for the next 3 years will be published.
(c)(1) No fur seal may be taken on the Pribilof Islands before June
23 of each year.
(2) No fur seal may be taken except by experienced sealers using the
traditional harvesting methods, including stunning followed immediately
by exsanguination. The harvesting method shall include organized drives
of subadult males to killing fields unless it is determined by the NMFS
representatives, in consultation with the Pribilovians conducting the
harvest, that alternative methods will not result in increased
disturbance to the rookery or the increased accidental take of female
seals.
(3) Any taking of adult fur seals or pups, or the intentional taking
of subadult female fur seals is prohibited.
(4) Only subadult male fur seals 124.5 centimeters or less in length
may be taken.
(5) Seals with tags and/or entangling debris may only be taken if so
directed by NMFS scientists.
(d) The scheduling of the harvest is at the discretion of the
Pribilovians, but must be such as to minimize stress to the harvested
seals. The Pribilovians must give adequate advance notice of their
harvest schedules to the NMFS representatives to allow for necessary
monitoring activities. Scheduling must be consistent with the following
restrictions:
(1) St. Paul Island--Seals may only be harvested from the following
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin,
Kitovi, and Reef. No haulout area may be harvested more than once per
week.
(2) St. George Island--Seals may only be harvested from the
following haulout areas: Northeast and Zapadni. Neither haulout area may
be harvested more than twice per week.
(e)(1) The Assistant Administrator is required to suspend the take
provided for in Sec. 215.31 when:
(i) He determines, after reasonable notice by NMFS representatives
to the Pribilovians on the island, that the subsistence needs of the
Pribilovians on the island have been satisfied;
or
(ii) He determines that the harvest is otherwise being conducted in
a wasteful manner; or
(iii) The lower end of the range of the estimated subsistence level
provided in the notice issued under paragraph (b) of this section is
reached.
(2) A suspension based on a determination under paragraph (e)(1)(ii)
of this section may be lifted by the Assistant Administrator if he finds
that the conditions which led to the determination that the harvest was
being conducted in a wasteful manner have been remedied.
(3) A suspension issued in accordance with paragraph (e)(1)(iii) of
this section may not exceed 48 hours in duration and shall be followed
immediately by a review of the harvest data to determine if a finding
under paragraph (e)(1)(i) of this section is warranted. If a the harvest
is not suspended under paragraph (e)(1)(i) of this section, the
Assistant Administrator must provide a revised estimate of the number of
seals required to satisfy the Pribilovians' subsistence needs.
(f) The Assistant Administrator shall terminate the take provided
for in Sec. 215.31 on August 8 of each year or when it is determined
under paragraph (e)(1)(i) of this section that the subsistence needs of
the Pribilovians on the island have been satisfied, whichever occurs
first.
[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59
FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.73 Disposition of fur seal parts.
Except for transfers to other Alaskan Natives for barter or sharing
for personal or family consumption, no part of a fur seal taken for
subsistence uses may be sold or otherwise transferred to
[[Page 54]]
any person unless it is a nonedible byproduct which:
(a) Has been transformed into an article of handicraft, or
(b) Is being sent by an Alaskan Native directly, or through a
registered agent, to a tannery registered under 50 CFR 216.23(c) for the
purpose of processing, and will be returned directly to the Alaskan
Native for conversion into an article of handicraft, or
(c) Is being sold or transferred to an Alaskan Native, or to an
agent registered under 50 CFR 216.23(c) for resale or transfer to an
Alaskan Native, who will convert the seal part into a handicraft.
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.74 Cooperation with Federal officials.
Pribilovians who engage in the harvest of seals are required to
cooperate with scientists engaged in fur seal research on the Pribilof
Islands who may need assistance in recording tag or other data and
collecting tissue or other fur seal samples for research purposes. In
addition, Pribilovians who take fur seals for subsistence uses must,
consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS
representatives on the Pribilof Islands who are responsible for
compiling the following information on a daily basis:
(a) The number of seals taken each day in the subsistence harvest,
(b) The extent of the utilization of fur seals taken, and
(c) Other information determined by the Assistant Administrator to
be necessary for determining the subsistence needs of the Pribilovians
or for making determinations under Sec. 215.32(e).
[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]
Subpart G_Pribilof Islands Administration
Sec. 216.81 Visits to fur seal rookeries.
From June 1 to October 15 of each year, no person, except those
authorized by a representative of the National Marine Fisheries Service,
or accompanied by an authorized employee of the National Marine
Fisheries Service, shall approach any fur seal rookery or hauling
grounds nor pass beyond any posted sign forbidding passage.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.82 Dogs prohibited.
In order to prevent molestation of fur seal herds, the landing of
any dogs at Pribilof Islands is prohibited.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.83 Importation of birds or mammals.
No mammals or birds, except household cats, canaries and parakeets,
shall be imported to the Pribilof Islands without the permission of an
authorized representative of the National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.84 [Reserved]
Sec. 216.85 Walrus and Otter Islands.
By Executive Order 1044, dated February 27, 1909, Walrus and Otter
Islands were set aside as bird reservations. All persons are prohibited
to land on these islands except those authorized by the appropriate
representative of the National Marine Fisheries Service.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.86 Local regulations.
Local regulations will be published from time to time and will be
brought to the attention of local residents and persons assigned to duty
on the Islands by posting in public places and brought to the attention
of tourists by personal notice.
[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]
Sec. 216.87 Wildlife research.
(a) Wildlife research, other than research on North Pacific fur
seals, including specimen collection, may be permitted on the Pribilof
Islands subject to the following conditions:
(1) Any person or agency, seeking to conduct such research shall
first obtain any Federal or State of Alaska permit
[[Page 55]]
required for the type of research involved.
(2) Any person seeking to conduct such research shall obtain prior
approval of the Director, Pribilof Islands Program, National Marine
Fisheries Service, National Oceanic and Atmospheric Administration, 1700
Westlake Avenue North, Seattle, WA 98109, by filing with the Director an
application which shall include:
(i) Copies of the required Federal and State of Alaska permits; and
(ii) A resume of the intended research program.
(3) All approved research shall be subject to all regulations and
administrative procedures in effect on the Pribilof Islands, and such
research shall not commence until approval from the Director is
received.
(4) Any approved research program shall be subject to such terms and
conditions as the Director, Pribilof Islands Program deems appropriate.
(5) Permission to utilize the Pribilof Islands to conduct an
approved research program may be revoked by the Director, Pribilof
Islands Program at any time for noncompliance with any terms and
conditions, or for violations of any regulation or administrative
procedure in effect on the Pribilof Islands.
[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]
Subpart H_Dolphin Safe Tuna Labeling
Authority: 16 U.S.C. 1385.
Sec. 216.90 Purposes.
This subpart governs the requirements for using the official mark
described in Sec. 216.95 or an alternative mark that refers to
dolphins, porpoises, or marine mammals, to label tuna or tuna products
offered for sale in or exported from the United States using the term
dolphin-safe or suggesting the tuna were harvested in a manner not
injurious to dolphins.
[69 FR 55307, Sept. 13, 2004]
Sec. 216.91 Dolphin-safe labeling standards.
(a) It is a violation of Section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or
seller of any tuna products that are exported from or offered for sale
in the United States to include on the label of those products the term
``dolphin-safe'' or any other term or symbol that claims or suggests
that the tuna contained in the products were harvested using a method of
fishing that is not harmful to dolphins if the products contain tuna
harvested:
(1) ETP large purse seine vessel. In the ETP by a purse seine vessel
of greater than 400 st (362.8 mt) carrying capacity unless:
(i) the documentation requirements for dolphin-safe tuna under Sec.
216.92 and 216.93 are met;
(ii) No dolphins were killed or seriously injured during the sets in
which the tuna were caught; and
(iii) None of the tuna were caught on a trip using a purse seine net
intentionally deployed on or to encircle dolphins, provided that this
paragraph (a)(1)(iii) will not apply if the Assistant Administrator
publishes a notification in the Federal Register announcing a finding
under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse
seine nets on or encirclement of dolphins is not having a significant
adverse impact on any depleted stock.
(2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a
purse seine net:
(i) In a fishery in which the Assistant Administrator has determined
that a regular and significant association occurs between dolphins and
tuna (similar to the association between dolphins and tuna in the ETP),
unless such products are accompanied by a written statement, executed by
the Captain of the vessel and an observer participating in a national or
international program acceptable to the Assistant Administrator,
certifying that no purse seine net was intentionally deployed on or used
to encircle dolphins during the particular trip on which the tuna were
caught and no dolphins were killed or seriously injured in the sets in
which the tuna were caught; or
[[Page 56]]
(ii) In any other fishery unless the products are accompanied by a
written statement executed by the Captain of the vessel certifying that
no purse seine net was intentionally deployed on or used to encircle
dolphins during the particular trip on which the tuna was harvested;
(3) Driftnet. By a vessel engaged in large-scale driftnet fishing;
or
(4) Other fisheries. By a vessel in a fishery other than one
described in paragraphs (a)(1) through(a)(3) of this section that is
identified by the Assistant Administrator as having a regular and
significant mortality or serious injury of dolphins, unless such product
is accompanied by a written statement, executed by the Captain of the
vessel and an observer participating in a national or international
program acceptable to the Assistant Administrator, that no dolphins were
killed or seriously injured in the sets or other gear deployments in
which the tuna were caught, provided that the Assistant Administrator
determines that such an observer statement is necessary.
(b) It is a violation of section 5 of the Federal Trade Commission
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in
this section in a campaign or effort to mislead or deceive consumers
about the level of protection afforded dolphins under the IDCP.
(c) A tuna product that is labeled with the official mark, described
in Sec. 216.95, may not be labeled with any other label or mark that
refers to dolphins, porpoises, or marine mammals.
[69 FR 55307, Sept. 13, 2004]
Sec. 216.92 Dolphin-safe requirements for tuna harvested in the ETP
by large purse seine vessels.
(a) U.S. vessels. Tuna products that contain tuna harvested by U.S.
flag purse seine vessels of greater than 400 st (362.8 mt) carrying
capacity in the ETP may be labeled dolphin-safe only if the following
requirements are met:
(1) Tuna Tracking Forms containing a complete record of all the
fishing activities on the trip, certified by the vessel Captain and the
observer, are submitted to the Administrator, Southwest Region, at the
end of the fishing trip during which the tuna was harvested;
(2) The tuna is delivered for processing to a U.S. tuna processor in
a plant located in one of the 50 states, Puerto Rico, or American Samoa
that is in compliance with the tuna tracking and verification
requirements of Sec. 216.93; and
(3) The tuna or tuna products meet the dolphin-safe labeling
standards under Sec. 216.91.
(b) Imported tuna. (1) Yellowfin tuna or tuna products harvested in
the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity
and presented for import into the United States may be labeled dolphin-
safe only if the yellowfin tuna was harvested by a U.S. vessel fishing
in compliance with the requirements of the IDCP and applicable U.S. law,
or by a vessel belonging to a nation that has obtained an affirmative
finding under Sec. 216.24(f)(8).
(2) Tuna or tuna products, other than yellowfin tuna, harvested in
the ETP by purse seine vessels of greater than 400 st (362.8 mt)
carrying capacity and presented for import into the United States may be
labeled dolphin-safe only if:
(i) The tuna was harvested by a U.S. vessel fishing in compliance
with the requirements of the IDCP and applicable U.S. law, or by a
vessel belonging to a nation that is a Party to the Agreement on the
IDCP or has applied to become a Party and is adhering to all the
requirements of the Agreement on the IDCP Tuna Tracking and Verification
Plan;
(ii) The tuna or tuna products are accompanied by a properly
completed FCO; and
(iii) The tuna or tuna products are accompanied by valid
documentation signed by a representative of the appropriate IDCP member
nation, containing the harvesting vessel names and tuna tracking form
numbers represented in the shipment, and certifying that:
(A) There was an IDCP approved observer on board the vessel(s)
during the entire trip(s); and
(B) The tuna contained in the shipment were caught according to the
dolphin-safe labeling standards of Sec. 216.91.
[69 FR 55307, Sept. 13, 2004]
[[Page 57]]
Sec. 216.93 Tracking and verification program.
The Administrator, Southwest Region, has established a national
tracking and verification program to accurately document the dolphin-
safe condition of tuna, under the standards set forth in Sec. Sec.
216.91 and 216.92. The tracking program includes procedures and reports
for use when importing tuna into the United States and during U.S. purse
seine fishing, processing, and marketing in the United States and
abroad. Verification of tracking system operations is attained through
the establishment of audit and document review requirements. The
tracking program is consistent with the international tuna tracking and
verification program adopted by the Parties to the Agreement on the
IDCP.
(a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the
ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing a unique number
assigned to that trip, are used by the observer to record every set made
during that trip. One TTF is used to record dolphin-safe sets and a
second TTF is used to record non-dolphin-safe sets. The information
entered on the TTFs following each set includes the date, well number,
weights by species composition, estimated tons loaded, and additional
notes, if any. The observer and the vessel engineer initial the entry as
soon as possible following each set, and the vessel captain and observer
review and sign both TTFs at the end of the fishing trip certifying that
the information on the forms is accurate. TTFs are confidential official
documents of the IDCP, consistent with Article XVIII of the Agreement on
the IDCP, and the Agreement on the IDCP Rules of Confidentiality.
(b) Dolphin-Safe Certification. Upon request, the Office of the
Administrator, Southwest Region, will provide written certification that
tuna harvested by U.S. purse seine vessels greater than 400 st (362.8
mt) carrying capacity is dolphin-safe, but only if NMFS' review of the
TTFs for the subject trip shows that the tuna for which the
certification is requested is dolphin-safe under the requirements of the
Agreement on the IDCP and U.S. law.
(c) Tracking fishing operations. (1) During ETP fishing trips by
purse seine vessels greater than 400 st (362.8 mt) carrying capacity,
tuna caught in sets designated as dolphin-safe by the vessel observer
must be stored separately from tuna caught in non-dolphin-safe sets from
the time of capture through unloading. Vessel personnel will decide into
which wells tuna will be loaded. The observer will initially designate
whether each set is dolphin-safe or not, based on his/her observation of
the set. The observer will initially identify a vessel fish well as
dolphin-safe if the first tuna loaded into the well during a trip was
captured in a set in which no dolphin died or was seriously injured. The
observer will initially identify a vessel fish well as non-dolphin-safe
if the first tuna loaded into the well during a trip was captured in a
set in which a dolphin died or was seriously injured. Any tuna loaded
into a well previously designated non-dolphin-safe is considered non-
dolphin-safe tuna. The observer will change the designation of a
dolphin-safe well to non-dolphin-safe if any tuna are loaded into the
well that were captured in a set in which a dolphin died or was
seriously injured.
(2) The captain, managing owner, or vessel agent of a U.S. purse
seine vessel greater than 400 st (362.8 mt) returning to port from a
trip, any part of which included fishing in the ETP, must provide at
least 48 hours notice of the vessel's intended place of landing, arrival
time, and schedule of unloading to the Administrator, Southwest Region.
(3) If the trip terminates when the vessel enters port to unload
part or all of its catch, new TTFs will be assigned to the new trip, and
any information concerning tuna retained on the vessel will be recorded
as the first entry on the TTFs for the new trip. If the trip is not
terminated following a partial unloading, the vessel will retain the
original TTFs and submit a copy of those TTFs to the Administrator,
Southwest Region, within 5 working days. In either case, the species and
amount unloaded will be noted on the respective originals.
[[Page 58]]
(4) Tuna offloaded to trucks, storage facilities, or carrier vessels
must be loaded or stored in such a way as to maintain and safeguard the
identification of the dolphin-safe or non-dolphin-safe designation of
the tuna as it left the fishing vessel.
(5)(i) When ETP caught tuna is offloaded from a U.S. purse seine
vessel greater than 400 st (362.8 mt) directly to a U.S. canner within
the 50 states, Puerto Rico, or American Samoa, or in any port and
subsequently loaded aboard a carrier vessel for transport to a U.S.
processing location, a NMFS representative may meet the U.S. purse seine
vessel to receive the TTFs from the vessel observer and to monitor the
handling of dolphin-safe and non-dolphin-safe tuna.
(ii) If a NMFS representative does not meet the vessel in port at
the time of arrival, the captain of the vessel or the vessel's managing
office must assure delivery of the TTFs to the Administrator, Southwest
Region, from that location within 5 working days of the end of the trip.
Alternatively, if the captain approves and notifies the Administrator,
Southwest Region, the captain may entrust the observer to deliver the
signed TTFs to the local office of the IATTC.
(iii) When ETP caught tuna is offloaded from a U.S. purse seine
vessel greater than 400 st (362.8 mt) carrying capacity directly to a
processing facility located outside the jurisdiction of the United
States in a country that is a Party to the Agreement on the IDCP, the
national authority in whose area of jurisdiction the tuna is to be
processed will assume the responsibility for tracking and verification
of the tuna offloaded. If a representative of the national authority
meets the vessel in port, that representative will receive the original
TTFs and assume the responsibility for providing copies of the TTFs to
the Administrator, Southwest Region. If a representative of the national
authority does not meet the vessel, the fishing vessel captain or the
vessel's managing office must assure delivery of the completed TTFs in
accordance with paragraphs (ii) and (v) of this section.
(iv) When ETP caught tuna is offloaded from a U.S. purse seine
vessel greater than 400 st (362.8 mt) carrying capacity in a country
that is not a Party to the Agreement on the IDCP, the tuna becomes the
tracking and verification responsibility of the national authority of
the processing facility when it is unloaded from the fishing vessel. The
captain or the vessel's managing office must assure delivery of the
completed TTFs in accordance with paragraphs (ii) and (v) of this
section.
(v) TTFs are confidential documents of the IDCP. Vessel captains and
managing offices may not provide copies of TTFs to any representatives
of private organizations or non-member states.
(d) Tracking cannery operations. (1) Whenever a U.S. tuna canning
company in the 50 states, Puerto Rico, or American Samoa receives a
domestic or imported shipment of ETP caught tuna for processing, a NMFS
representative may be present to monitor delivery and verify that
dolphin-safe and non-dolphin-safe tuna are clearly identified and remain
segregated. Such inspections may be scheduled or unscheduled, and
canners must allow the NMFS representative access to all areas and
records.
(2) Tuna processors must submit a report to the Administrator,
Southwest Region, of all tuna received at their processing facilities in
each calendar month whether or not the tuna is actually canned or stored
during that month. Monthly cannery receipt reports must be submitted
electronically or by mail before the last day of the month following the
month being reported. Monthly reports must contain the following
information:
(i) Domestic receipts: dolphin-safe status, species, condition
(round, loin, dressed, gilled and gutted, other), weight in short tons
to the fourth decimal, ocean area of capture (ETP, western Pacific,
Indian, eastern and western Atlantic, other), catcher vessel, trip
dates, carrier name, unloading dates, and location of unloading.
(ii) Import receipts: In addition to the information required in
paragraph (d)(2)(i) of this section, a copy of the FCO for each imported
receipt must be provided.
(3) Tuna processors must report on a monthly basis the amounts of
ETP-
[[Page 59]]
caught tuna that were immediately utilized upon receipt or removed from
cold storage. This report may be submitted in conjunction with the
monthly report required in paragraph (d)(2) of this section. This report
must contain:
(i) The date of removal from cold storage or disposition;
(ii) Storage container or lot identifier number(s) and dolphin-safe
or non-dolphin-safe designation of each container or lot; and
(iii) Details of the disposition of fish (for example, canning,
sale, rejection, etc.).
(4) During canning activities, non-dolphin-safe tuna may not be
mixed in any manner or at any time during processing with any dolphin-
safe tuna or tuna products and may not share the same storage
containers, cookers, conveyers, tables, or other canning and labeling
machinery.
(e) Tracking imports. All tuna products, except fresh tuna, that are
imported into the United States must be accompanied by a properly
certified FCO as required by Sec. 216.24(f)(2). For tuna tracking
purposes, copies of FCOs and associated certifications must be submitted
by the importer of record to the Administrator, Southwest Region, within
30 days of the shipment's entry into the commerce of the United States
as required by Sec. 216.24(f)(3)(ii).
(f) Verification requirements--(1) Record maintenance. Any exporter,
transshipper, importer, processor, or wholesaler/distributor of any tuna
or tuna products must maintain records related to that tuna for at least
2 years. These records include, but are not limited to: FCOs and
required certifications, any reports required in paragraphs (a), (b) and
(d) of this section, invoices, other import documents, and trip reports.
(2) Record submission. Within 30 days of receiving a shipment of
tuna or tuna products, any exporter, transshipper, importer, processor,
wholesaler/distributor of tuna or tuna products must submit to the
Administrator, Southwest Region, all corresponding FCOs and required
certifications for those tuna or tuna products.
(3) Audits and spot checks. Upon request of the Administrator,
Southwest Region, any exporter, transshipper, importer, processor, or
wholesaler/distributor of tuna or tuna products must provide the
Administrator, Southwest Region, timely access to all pertinent records
and facilities to allow for audits and spot-checks on caught, landed,
stored, and processed tuna.
(g) Confidentiality of proprietary information. Information
submitted to the Assistant Administrator under this section will be
treated as confidential in accordance with NOAA Administrative Order
216-100 ``Protection of Confidential Fisheries Statistics.''
[69 FR 55307, Sept. 13, 2004, as amended at 70 FR 19009, Apr. 12, 2005]
Sec. 216.94 False statements or endorsements.
Any person who knowingly and willfully makes a false statement or
false endorsement required by Sec. 216.92 is liable for a civil penalty
not to exceed $100,000, that may be assessed in an action brought in any
appropriate District Court of the United States on behalf of the
Secretary.
[61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004]
Sec. 216.95 Official mark for ``Dolphin-safe'' tuna products.
(a) This is the ``official mark'' (see figure 1) designated by the
United States Department of Commerce that may be used to label tuna
products that meet the ``dolphin-safe'' standards set forth in the
Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and
implementing regulations at Sec. Sec. 216.91 through 216.94:
[[Page 60]]
[GRAPHIC] [TIFF OMITTED] TR30MY00.019
(b) Location and size of the official mark. The official mark on
labels must allow the consumer to identify the official mark and be
similar in design and scale to figure 1. A full color version of the
official mark is available at http://swr.ucsd.edu/dsl.htm.
[65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004]
Subpart I_General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
Source: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.
Sec. 216.101 Purpose.
The regulations in this subpart implement section 101(a)(5) (A)
through (D) of the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon
request, the incidental, but not intentional, taking of small numbers of
marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographic region.
Sec. 216.102 Scope.
The taking of small numbers of marine mammals under section
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be
allowed only if the National Marine Fisheries Service:
(a) Finds, based on the best scientific evidence available, that the
total taking by the specified activity during the specified time period
will have a negligible impact on species or stock of
[[Page 61]]
marine mammal(s) and will not have an unmitigable adverse impact on the
availability of those species or stocks of marine mammals intended for
subsistence uses;
(b) Prescribes either regulations under Sec. 216.106, or
requirements and conditions contained within an incidental harassment
authorization issued under Sec. 216.107, setting forth permissible
methods of taking and other means of effecting the least practicable
adverse impact on the species or stock of marine mammal and its habitat
and on the availability of the species or stock of marine mammal for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance; and
(c) Prescribes either regulations or requirements and conditions
contained within an incidental harassment authorization, as appropriate,
pertaining to the monitoring and reporting of such taking. The specific
regulations governing certain specified activities are contained in
subsequent subparts of this part.
Sec. 216.103 Definitions.
In addition to definitions contained in the MMPA, and in Sec.
216.3, and unless the context otherwise requires, in subsequent subparts
to this part:
Arctic waters means the marine and estuarine waters north of 60[deg]
N. lat.
Citizens of the United States and U.S. citizens mean individual U.S.
citizens or any corporation or similar entity if it is organized under
the laws of the United States or any governmental unit defined in 16
U.S.C. 1362(13). U.S. Federal, state and local government agencies shall
also constitute citizens of the United States for purposes of this part.
Incidental harassment, incidental taking and incidental, but not
intentional, taking all mean an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings that
are infrequent, unavoidable or accidental. (A complete definition of
``take'' is contained in Sec. 216.3).
Negligible impact is an impact resulting from the specified activity
that cannot be reasonably expected to, and is not reasonably likely to,
adversely affect the species or stock through effects on annual rates of
recruitment or survival.
Small numbers means a portion of a marine mammal species or stock
whose taking would have a negligible impact on that species or stock.
Specified activity means any activity, other than commercial
fishing, that takes place in a specified geographical region and
potentially involves the taking of small numbers of marine mammals.
Specified geographical region means an area within which a specified
activity is conducted and that has certain biogeographic
characteristics.
Unmitigable adverse impact means an impact resulting from the
specified activity:
(1) That is likely to reduce the availability of the species to a
level insufficient for a harvest to meet subsistence needs by:
(i) Causing the marine mammals to abandon or avoid hunting areas;
(ii) Directly displacing subsistence users; or
(iii) Placing physical barriers between the marine mammals and the
subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to
increase the availability of marine mammals to allow subsistence needs
to be met.
Sec. 216.104 Submission of requests.
(a) In order for the National Marine Fisheries Service to consider
authorizing the taking by U.S. citizens of small numbers of marine
mammals incidental to a specified activity (other than commercial
fishing), or to make a finding that an incidental take is unlikely to
occur, a written request must be submitted to the Assistant
Administrator. All requests must include the following information for
their activity:
(1) A detailed description of the specific activity or class of
activities that can be expected to result in incidental taking of marine
mammals;
(2) The date(s) and duration of such activity and the specific
geographical region where it will occur;
(3) The species and numbers of marine mammals likely to be found
within the activity area;
[[Page 62]]
(4) A description of the status, distribution, and seasonal
distribution (when applicable) of the affected species or stocks of
marine mammals likely to be affected by such activities;
(5) The type of incidental taking authorization that is being
requested (i.e., takes by harassment only; takes by harassment, injury
and/or death) and the method of incidental taking;
(6) By age, sex, and reproductive condition (if possible), the
number of marine mammals (by species) that may be taken by each type of
taking identified in paragraph (a)(5) of this section, and the number of
times such takings by each type of taking are likely to occur;
(7) The anticipated impact of the activity upon the species or stock
of marine mammal;
(8) The anticipated impact of the activity on the availability of
the species or stocks of marine mammals for subsistence uses;
(9) The anticipated impact of the activity upon the habitat of the
marine mammal populations, and the likelihood of restoration of the
affected habitat;
(10) The anticipated impact of the loss or modification of the
habitat on the marine mammal populations involved;
(11) The availability and feasibility (economic and technological)
of equipment, methods, and manner of conducting such activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and on their availability for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance;
(12) Where the proposed activity would take place in or near a
traditional Arctic subsistence hunting area and/or may affect the
availability of a species or stock of marine mammal for Arctic
subsistence uses, the applicant must submit either a plan of cooperation
or information that identifies what measures have been taken and/or will
be taken to minimize any adverse effects on the availability of marine
mammals for subsistence uses. A plan must include the following:
(i) A statement that the applicant has notified and provided the
affected subsistence community with a draft plan of cooperation;
(ii) A schedule for meeting with the affected subsistence
communities to discuss proposed activities and to resolve potential
conflicts regarding any aspects of either the operation or the plan of
cooperation;
(iii) A description of what measures the applicant has taken and/or
will take to ensure that proposed activities will not interfere with
subsistence whaling or sealing; and
(iv) What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in the
operation;
(13) The suggested means of accomplishing the necessary monitoring
and reporting that will result in increased knowledge of the species,
the level of taking or impacts on populations of marine mammals that are
expected to be present while conducting activities and suggested means
of minimizing burdens by coordinating such reporting requirements with
other schemes already applicable to persons conducting such activity.
Monitoring plans should include a description of the survey techniques
that would be used to determine the movement and activity of marine
mammals near the activity site(s) including migration and other habitat
uses, such as feeding. Guidelines for developing a site-specific
monitoring plan may be obtained by writing to the Director, Office of
Protected Resources; and
(14) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans, and activities relating to reducing such
incidental taking and evaluating its effects.
(b)(1) The Assistant Administrator shall determine the adequacy and
completeness of a request and, if determined to be adequate and
complete, will begin the public review process by publishing in the
Federal Register either:
(i) A proposed incidental harassment authorization; or
(ii) A notice of receipt of a request for the implementation or
reimplementation of regulations governing the incidental taking.
[[Page 63]]
(2) Through notice in the Federal Register, newspapers of general
circulation, and appropriate electronic media in the coastal areas that
may be affected by such activity, NMFS will invite information,
suggestions, and comments for a period not to exceed 30 days from the
date of publication in the Federal Register. All information and
suggestions will be considered by the National Marine Fisheries Service
in developing, if appropriate, the most effective regulations governing
the issuance of letters of authorization or conditions governing the
issuance of an incidental harassment authorization.
(3) Applications that are determined to be incomplete or
inappropriate for the type of taking requested, will be returned to the
applicant with an explanation of why the application is being returned.
(c) The Assistant Administrator shall evaluate each request to
determine, based upon the best available scientific evidence, whether
the taking by the specified activity within the specified geographic
region will have a negligible impact on the species or stock and, where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses. If the
Assistant Administrator finds that the mitigating measures would render
the impact of the specified activity negligible when it would not
otherwise satisfy that requirement, the Assistant Administrator may make
a finding of negligible impact subject to such mitigating measures being
successfully implemented. Any preliminary findings of ``negligible
impact'' and ``no unmitigable adverse impact'' shall be proposed for
public comment along with either the proposed incidental harassment
authorization or the proposed regulations for the specific activity.
(d) If, subsequent to the public review period, the Assistant
Administrator finds that the taking by the specified activity would have
more than a negligible impact on the species or stock of marine mammal
or would have an unmitigable adverse impact on the availability of such
species or stock for subsistence uses, the Assistant Administrator shall
publish in the Federal Register the negative finding along with the
basis for denying the request.
Sec. 216.105 Specific regulations.
(a) For all petitions for regulations under this paragraph,
applicants must provide the information requested in Sec. 216.104(a) on
their activity as a whole, which includes, but is not necessarily
limited to, an assessment of total impacts by all persons conducting the
activity.
(b) For allowed activities that may result in incidental takings of
small numbers of marine mammals by harassment, serious injury, death or
a combination thereof, specific regulations shall be established for
each allowed activity that set forth:
(1) Permissible methods of taking;
(2) Means of effecting the least practicable adverse impact on the
species and its habitat and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for the independent peer-review of proposed monitoring
plans where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses.
(c) Regulations will be established based on the best available
information. As new information is developed, through monitoring,
reporting, or research, the regulations may be modified, in whole or in
part, after notice and opportunity for public review.
Sec. 216.106 Letter of Authorization.
(a) A Letter of Authorization, which may be issued only to U.S.
citizens, is required to conduct activities pursuant to any regulations
established under Sec. 216.105. Requests for Letters of Authorization
shall be submitted to the Director, Office of Protected Resources. The
information to be submitted in a request for an authorization will be
specified in the appropriate subpart to this part or may be obtained by
writing to the above named person.
(b) Issuance of a Letter of Authorization will be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under the specific
regulations.
[[Page 64]]
(c) Letters of Authorization will specify the period of validity and
any additional terms and conditions appropriate for the specific
request.
(d) Notice of issuance of all Letters of Authorization will be
published in the Federal Register within 30 days of issuance.
(e) Letters of Authorization shall be withdrawn or suspended, either
on an individual or class basis, as appropriate, if, after notice and
opportunity for public comment, the Assistant Administrator determines
that:
(1) The regulations prescribed are not being substantially complied
with; or
(2) The taking allowed is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(f) The requirement for notice and opportunity for public review in
Sec. 216.106(e) shall not apply if the Assistant Administrator
determines that an emergency exists that poses a significant risk to the
wellbeing of the species or stocks of marine mammals concerned.
(g) A violation of any of the terms and conditions of a Letter of
Authorization or of the specific regulations shall subject the Holder
and/or any individual who is operating under the authority of the
Holder's Letter of Authorization to penalties provided in the MMPA.
Sec. 216.107 Incidental harassment authorization for Arctic waters.
(a) Except for activities that have the potential to result in
serious injury or mortality, which must be authorized under Sec.
216.105, incidental harassment authorizations may be issued, following a
30-day public review period, to allowed activities that may result in
only the incidental harassment of a small number of marine mammals. Each
such incidental harassment authorization shall set forth:
(1) Permissible methods of taking by harassment;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for the independent peer-review of proposed monitoring
plans where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses.
(b) Issuance of an incidental harassment authorization will be based
on a determination that the number of marine mammals taken by harassment
will be small, will have a negligible impact on the species or stock of
marine mammal(s), and will not have an unmitigable adverse impact on the
availability of species or stocks for taking for subsistence uses.
(c) An incidental harassment authorization will be either issued or
denied within 45 days after the close of the public review period.
(d) Notice of issuance or denial of an incidental harassment
authorization will be published in the Federal Register within 30 days
of issuance of a determination.
(e) Incidental harassment authorizations will be valid for a period
of time not to exceed 1 year but may be renewed for additional periods
of time not to exceed 1 year for each reauthorization.
(f) An incidental harassment authorization shall be modified,
withdrawn, or suspended if, after notice and opportunity for public
comment, the Assistant Administrator determines that:
(1) The conditions and requirements prescribed in the authorization
are not being substantially complied with; or
(2) The authorized taking, either individually or in combination
with other authorizations, is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(g) The requirement for notice and opportunity for public review in
paragraph (f) of this section shall not apply if the Assistant
Administrator determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals concerned.
(h) A violation of any of the terms and conditions of an incidental
harassment authorization shall subject the
[[Page 65]]
holder and/or any individual who is operating under the authority of the
holder's incidental harassment authorization to penalties provided in
the MMPA.
Sec. 216.108 Requirements for monitoring and reporting under
incidental harassment authorizations for Arctic waters.
(a) Holders of an incidental harassment authorization in Arctic
waters and their employees, agents, and designees must cooperate with
the National Marine Fisheries Service and other designated Federal,
state, or local agencies to monitor the impacts of their activity on
marine mammals. Unless stated otherwise within an incidental harassment
authorization, the holder of an incidental harassment authorization
effective in Arctic waters must notify the Alaska Regional Director,
National Marine Fisheries Service, of any activities that may involve a
take by incidental harassment in Arctic waters at least 14 calendar days
prior to commencement of the activity.
(b) Holders of incidental harassment authorizations effective in
Arctic waters may be required by their authorization to designate at
least one qualified biological observer or another appropriately
experienced individual to observe and record the effects of activities
on marine mammals. The number of observers required for monitoring the
impact of the activity on marine mammals will be specified in the
incidental harassment authorization. If observers are required as a
condition of the authorization, the observer(s) must be approved in
advance by the National Marine Fisheries Service.
(c) The monitoring program must, if appropriate, document the
effects (including acoustical) on marine mammals and document or
estimate the actual level of take. The requirements for monitoring
plans, as specified in the incidental harassment authorization, may vary
depending on the activity, the location, and the time.
(d) Where the proposed activity may affect the availability of a
species or stock of marine mammal for taking for subsistence purposes,
proposed monitoring plans or other research proposals must be
independently peer-reviewed prior to issuance of an incidental
harassment authorization under this subpart. In order to complete the
peer-review process within the time frames mandated by the MMPA for an
incidental harassment authorization, a proposed monitoring plan
submitted under this paragraph must be submitted to the Assistant
Administrator no later than the date of submission of the application
for an incidental harassment authorization. Upon receipt of a complete
monitoring plan, and at its discretion, the National Marine Fisheries
Service will either submit the plan to members of a peer review panel
for review or within 60 days of receipt of the proposed monitoring plan,
schedule a workshop to review the plan. The applicant must submit a
final monitoring plan to the Assistant Administrator prior to the
issuance of an incidental harassment authorization.
(e) At its discretion, the National Marine Fisheries Service may
place an observer aboard vessels, platforms, aircraft, etc., to monitor
the impact of activities on marine mammals.
(f)(1) As specified in the incidental harassment authorization, the
holder of an incidental harassment authorization for Arctic waters must
submit reports to the Assistant Administrator within 90 days of
completion of any individual components of the activity (if any), within
90 days of completion of the activity, but no later than 120 days prior
to expiration of the incidental harassment authorization, whichever is
earlier. This report must include the following information:
(i) Dates and type(s) of activity;
(ii) Dates and location(s) of any activities related to monitoring
the effects on marine mammals; and
(iii) Results of the monitoring activities, including an estimate of
the actual level and type of take, species name and numbers of each
species observed, direction of movement of species, and any observed
changes or modifications in behavior.
(2) Monitoring reports will be reviewed by the Assistant
Administrator and, if determined to be incomplete or inaccurate, will be
returned to the
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holder of the authorization with an explanation of why the report is
being returned. If the authorization holder disagrees with the findings
of the Assistant Administrator, the holder may request an independent
peer review of the report. Failure to submit a complete and accurate
report may result in a delay in processing future authorization
requests.
(g) Results of any behavioral, feeding, or population studies, that
are conducted supplemental to the monitoring program, should be made
available to the National Marine Fisheries Service before applying for
an incidental harassment authorization for the following year.
Subpart J_Taking Marine Mammals Incidental to Coastal Commercial
Fireworks Displays at Monterey Bay National Marine Sanctuary, CA
Source: 71 FR 40932, July 19, 2006, unless otherwise noted.
Effective Date Note: At 71 FR 40932, July 19, 2006, Subpart J
consisting of Sec. Sec. 216.110 through 216.119 were added, effective
July 4, 2006 through July 3, 2011.
Sec. 216.110 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by the MBNMS.
(b) The incidental take, by Level B harassment only, of marine
mammals under the activity identified in this section is limited to the
following species: California sea lions (Zalophus californianus) and
Pacific harbor seals (Phoca vitulina).
Sec. 216.111 Effective dates.
Regulations in this subpart are effective from July 4, 2006, through
July 3, 2011.
Sec. 216.112 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.117, the Holder of the Letter of Authorization (i.e. the
Superintendent of MBNMS) may incidentally, but not intentionally, take
marine mammals by Level B harassment only, within the area described in
Sec. 216.110(a), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The activities identified in Sec. 216.110(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The taking of marine mammals is authorized for the species
listed in Sec. 216.110(b) and is limited to the Level B Harassment of
no more than 6,170 California sea lions and 1,065 harbor seals annually.
Sec. 216.113 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.110 and authorized
by a Letter of Authorization issued under Sec. Sec. 216.106 and
216.117, no person in connection with the activities described in Sec.
216.110 may:
(a) Take any marine mammal not specified in Sec. 216.110(b);
(b) Take any marine mammal specified in Sec. 216.110(b) other than
by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 216.110(b) if such
taking results in more than a negligible impact on the species or stocks
of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.117.
Sec. 216.114 Mitigation.
(a) The activity identified in Sec. 216.110(a) must be conducted in
a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting operations
identified in Sec. 216.110(a), all the mitigation measures contained in
the Letter of Authorization issued under Sec. Sec. 216.106 and 216.117
must be implemented, including but not limited to:
(1) Limiting the location of the authorized fireworks displays to
the four specifically prescribed areas at Half
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Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey
Peninsula, and Cambria (Santa Rosa Creek);
(2) Limiting the total frequency of authorized fireworks displays to
no more than 20 total displays per year and the average frequency to no
more than one fireworks display every two months in each of the four
conditional display areas;
(3) Limiting the duration of authorized individual fireworks
displays to no longer than 30 minutes each, with the exception of two
longer shows not to exceed 1 hour;
(4) Prohibiting fireworks displays at MBNMS between March 1 and June
30 of any year; and
(5) Implementing the following special conditions for fireworks when
authorizing fireworks displays at the MBNMS:
(i) Delay of aerial ``salute'' effects until five minutes after the
commencement of any fireworks display.
(ii) Removal of all plastic labels and wrappings from pyrotechnic
devices prior to use.
(iii) Required recovery of all fireworks related debris from the
launch site and affected beaches on the evening of the display and again
on the morning after.
(b) The mitigation measures that the individuals conducting the
fireworks are responsible for shall be included as a requirement in any
Authorization the MBNMS issues to the individuals.
Sec. 216.115 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.117 for activities described in Sec.
216.110(a) is required to cooperate with the National Marine Fisheries
Service (NMFS), and any other Federal, state or local agency monitoring
the impacts of the activity on marine mammals. The Holder of the Letter
of Authorization must notify the Director, Office of Protected
Resources, National Marine Fisheries Service, or designee, by telephone
(301-713-2289), within 48 hours if the authorized activity identified in
Sec. 216.110(a) is thought to have resulted in the mortality or injury
of any marine mammals, or in any take of marine mammals not identified
in Sec. 216.110(b).
(b) The Holder of the Letter of Authorization must conduct all
monitoring and/or research required under the Letter of Authorization
including, but not limited to:
(1) A one-time comprehensive pinniped census at the City of Monterey
Fourth of July Celebration in 2007;
(2) A one-time acoustic measurement of the Monterey Fourth of July
Celebration in 2007;
(3) Counts of pinnipeds in the impact area prior to all displays at
all locations; and
(4) Reporting to NMFS of all marine mammal injury or mortality
encountered during debris cleanup the morning after every fireworks
display authorized by the Sanctuary.
(c) Unless specified otherwise in the Letter of Authorization, the
Holder of the Letter of Authorization must submit a draft annual
monitoring report to the Director, Office of Protected Resources, NMFS,
no later than 60 days after the conclusion of each calendar year. This
report must contain;
(1) An estimate of the number of marine mammals disturbed by the
authorized activities,
(2) Results of the monitoring required in Sec. 216.115 (b) and (c)
and any additional information required by the Letter of Authorization.
A final annual monitoring report must be submitted to the NMFS within 30
days after receiving comments from NMFS on the draft report. If no
comments are received from NMFS, the draft report will be considered to
be the final annual monitoring report.
(d) A draft comprehensive monitoring report on all marine mammal
monitoring and research conducted during the period of these regulations
must be submitted to the Director, Office of Protected Resources, NMFS
at least 120 days prior to expiration of these regulations or 120 days
after the expiration of these regulations if renewal of the regulations
will not be requested. A final comprehensive monitoring report must be
submitted to the NMFS within 30 days after receiving comments from NMFS
on the draft report. If no comments are received from
[[Page 68]]
NMFS, the draft report will be considered to be the final comprehensive
monitoring report.
Sec. 216.116 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to these regulations,
the U.S. citizen (as defined by Sec. 216.103) conducting the activity
identified in Sec. 216.110(a) must apply for and obtain either an
initial Letter of Authorization in accordance with Sec. Sec. 216.117 or
a renewal under Sec. 216.118.
Sec. 216.117 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, subject to annual renewal pursuant to the conditions in Sec.
216.118.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses (i.e., mitigation); and
(3) Requirements for mitigation, monitoring and reporting.
(c) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact on
the affected species or stock of marine mammal(s).
(d) The U.S. Citizen, i.e., the MBNMS, operating under an LOA must
clearly describe in any Sanctuary Authorizations issued to the
individuals conducting fireworks displays, any requirements of the LOA
for which the individuals conducting fireworks are responsible.
Sec. 216.118 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.117 for the activity identified in Sec. 216.110(a) will be renewed
annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 216.116 will be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming 12 months;
(2) Timely receipt of the monitoring reports required under Sec.
216.115(b), and the Letter of Authorization issued under Sec. 216.117,
which has been reviewed and accepted by NMFS; and
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 216.114 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 216.117, were
undertaken and will be undertaken during the upcoming annual period of
validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.118 indicates that a substantial
modification to the described work, mitigation or monitoring undertaken
during the upcoming season will occur, the NMFS will provide the public
a period of 30 days for review and comment on the request. Review and
comment on renewals of Letters of Authorization are restricted to:
(1) New cited information and data indicating that the
determinations made in this document are in need of reconsideration, and
(2) Proposed changes to the mitigation and monitoring requirements
contained in these regulations or in the current Letter of
Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register.
Sec. 216.119 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106
and 216.117 and subject to the provisions of this subpart shall be made
until after notification and an opportunity for public comment has been
provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 216.118, without modification (except for the
period of validity), is not considered a substantive modification.
[[Page 69]]
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.110(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.117 may be
substantively modified without prior notification and an opportunity for
public comment. Notification will be published in the Federal Register
within 30 days subsequent to the action.
Subpart K_Taking of Marine Mammals Incidental to Space Vehicle and Test
Flight Activities
Source: 69 FR 5727, Feb. 6, 2004, unless otherwise noted.
Effective Date Note: At 69 FR 5727, Feb. 6, 2004, subpart K,
consisting of Sec. Sec. 216.120 through 216.128 were added, effective
Feb. 6, 2004, through Feb. 6, 2009.
Sec. 216.120 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammals specified in paragraph (b) of this section by
U.S. citizens engaged in:
(1) Launching up to 30 space and missiles vehicles each year from
Vandenberg Air Force Base, for a total of up to 150 missiles and rockets
over the 5-year period of these regulations,
(2) Launching up to 20 rockets each year from Vandenberg Air Force
Base, for a total of up to 100 rocket launches over the 5-year period of
these regulations,
(3) Aircraft flight test operations, and
(4) Helicopter operations from Vandenberg Air Force Base.
(b) The incidental take of marine mammals on Vandenberg Air Force
Base and in waters off southern California, under the activity
identified in paragraph (a) of this section, is limited to the following
species: Harbor seals (Phoca vitulina), California sea lions (Zalophus
californianus), northern elephant seals (Mirounga angustirostris), and
northern fur seals (Callorhinus ursinus).
Sec. 216.121 Effective dates.
Regulations in this subpart are effective from February 6, 2004,
through February 6, 2009.
Sec. 216.122 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106,
the 30th Space Wing, U.S. Air Force, its contractors, and clients, may
incidentally, but not intentionally, take marine mammals by harassment,
within the area described in Sec. 216.120, provided all terms,
conditions, and requirements of these regulations and such Letter(s) of
Authorization are complied with.
(b) [Reserved]
Sec. 216.123 Prohibitions.
No person in connection with the activities described in Sec.
216.120 shall:
(a) Take any marine mammal not specified in Sec. 216.120(b);
(b) Take any marine mammal specified in Sec. 216.120(b) other than
by incidental, unintentional harassment;
(c) Take a marine mammal specified in Sec. 216.120(b) if such take
results in more than a negligible impact on the species or stocks of
such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. 216.106.
Sec. 216.124 Mitigation.
(a) The activity identified in Sec. 216.120(a) must be conducted in
a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting operations
identified in Sec. 216.120, the following mitigation measures must be
utilized:
(1) All aircraft and helicopter flight paths must maintain a minimum
distance of 1,000 ft (305 m) from recognized seal haul-outs and
rookeries (e.g., Point Sal, Purisima Point, Rocky Point), except in
emergencies or for real-time security incidents (e.g., search-and-
rescue, fire-fighting) which may require approaching pinniped rookeries
closer than 1,000 ft (305 m).
(2) For missile and rocket launches, holders of Letters of
Authorization must avoid, whenever possible,
[[Page 70]]
launches during the harbor seal pupping season of March through June,
unless constrained by factors including, but not limited to, human
safety, national security, or for space vehicle launch trajectory
necessary to meet mission objectives.
(3) VAFB must avoid, whenever possible, launches which are predicted
to produce a sonic boom on the Northern Channel Islands during harbor
seal, elephant seal, and California sea lion pupping seasons, March
through June.
(4) If post-launch surveys determine that an injurious or lethal
take of a marine mammal has occurred, the launch procedure and the
monitoring methods must be reviewed, in cooperation with NMFS, and
appropriate changes must be made through modification to a Letter of
Authorization, prior to conducting the next launch under that Letter of
Authorization.
(5) Additional mitigation measures as contained in a Letter of
uthorization.
(b) [Reserved]
Sec. 216.125 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to Sec.
216.106 for activities described in Sec. 216.120(a) are required to
cooperate with the National Marine Fisheries Service, and any other
Federal, state or local agency monitoring the impacts of the activity on
marine mammals. Unless specified otherwise in the Letter of
Authorization, the Holder of the Letter of Authorization must notify the
Administrator, Southwest Region, National Marine Fisheries Service, by
letter or telephone, at least 2 weeks prior to activities possibly
involving the taking of marine mammals.
(b) Holders of Letters of Authorization must designate qualified on-
site individuals, approved in advance by the National Marine Fisheries
Service, as specified in the Letter of Authorization, to:
(1) Conduct observations on harbor seal, elephant seal, and sea lion
activity in the vicinity of the rookery nearest the launch platform or,
in the absence of pinnipeds at that location, at another nearby haulout,
for at least 72 hours prior to any planned launch occurring during the
harbor seal pupping season (1 March through 30 June) and continue for a
period of time not less than 48 hours subsequent to launching,
(2) For launches during the harbor seal pupping season (March
through June), conduct follow-up surveys within 2 weeks of the launch to
ensure that there were no adverse effects on any marine mammals,
(3) Monitor haul-out sites on the Northern Channel Islands, if it is
determined by modeling that a sonic boom of greater than 1 psf could
occur in those areas (this determination will be made in consultation
with the National Marine Fisheries Service),
(4) Investigate the potential for spontaneous abortion, disruption
of effective female-neonate bonding, and other reproductive dysfunction,
(5) Supplement observations on Vandenberg and on the Northern
Channel Islands with video-recording of mother-pup seal responses for
daylight launches during the pupping season,
(6) Conduct acoustic measurements of those launch vehicles that have
not had sound pressure level measurements made previously, and
(7) Include multiple surveys each day that record the species,
number of animals, general behavior, presence of pups, age class, gender
and reaction to launch noise, sonic booms or other natural or human
caused disturbances, in addition to recording environmental conditions
such as tide, wind speed, air temperature, and swell.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) The Holder of the Letter of Authorization must submit a report
to the Southwest Administrator, National Marine Fisheries Service within
90 days after each launch. This report must contain the following
information:
(1) Date(s) and time(s) of the launch,
(2) Design of the monitoring program, and
(3) Results of the monitoring programs, including, but not
necessarily limited to:
(i) Numbers of pinnipeds present on the haulout prior to
commencement of the launch,
[[Page 71]]
(ii) Numbers of pinnipeds that may have been harassed as noted by
the number of pinnipeds estimated to have entered the water as a result
of launch noise,
(iii) The length of time(s) pinnipeds remained off the haulout or
rookery,
(iv) The numbers of pinniped adults or pups that may have been
injured or killed as a result of the launch, and
(v) Behavioral modifications by pinnipeds that were likely the
result of launch noise or the sonic boom.
(e) An annual report must be submitted at the time of renewal of the
LOA.
(f) A final report must be submitted at least 180 days prior to
expiration of these regulations. This report will:
(1) Summarize the activities undertaken and the results reported in
all previous reports,
(2) Assess the impacts at each of the major rookeries,
(3) Assess the cumulative impact on pinnipeds and other marine
mammals from Vandenberg activities, and
(4) State the date(s), location(s), and findings of any research
activities related to monitoring the effects on launch noise and sonic
booms on marine mammal populations.
Sec. 216.126 Applications for Letters of Authorization.
(a) To incidentally take harbor seals and other marine mammals
pursuant to these regulations, either the U.S. citizen conducting the
activity or the 30th Space Wing on behalf of the U.S. citizen conducting
the activity, must apply for and obtain a Letter of Authorization in
accordance with Sec. 216.106.
(b) The application must be submitted to the National Marine
Fisheries Service at least 30 days before the activity is scheduled to
begin.
(c) Applications for Letters of Authorization and for renewals of
Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) A description of the activity, the dates of the activity, and
the specific location of the activity, and
(3) Plans to monitor the behavior and effects of the activity on
marine mammals.
(d) A copy of the Letter of Authorization must be in the possession
of the persons conducting activities that may involve incidental takings
of seals and sea lions.
Sec. 216.127 Renewal of Letters of Authorization.
A Letter of Authorization issued under Sec. 216.126 for the
activity identified in Sec. 216.120(a) will be renewed annually upon:
(a) Timely receipt of the reports required under Sec. 216.125(d),
if determined by the Assistant Administrator to be acceptable; and
(b) A determination that the mitigation measures required under
Sec. 216.124 and the Letter of Authorization have been undertaken.
Sec. 216.128 Modifications of Letters of Authorization.
(a) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (b) of this section, no substantive
modification, including withdrawal or suspension, to a Letter of
Authorization subject to the provisions of this subpart shall be made
until after notice and an opportunity for public comment.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.120 (b), a Letter of
Authorization may be substantively modified without prior notice and
opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
Subparts L-M [Reserved]
Subpart N_Taking of Marine Mammals Incidental to Missile Launch
Operations from San Nicolas Island, CA
Source: 68 FR 52138, Sept. 2, 2003, unless otherwise noted.
Effective Date Note: At 68 FR 52138, Sept. 2, 2003, Subpart N,
consisting of Sec. Sec. 216.151 through 216.158 were added, effective
Oct. 2, 2003, through Oct. 2, 2008.
[[Page 72]]
Sec. 216.151 Specified activity, geographical region, and incidental
take levels.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in target missile launch activities at the Naval Air
Warfare Center Weapons Division facilities on San Nicolas Island,
California.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to the following
species: northern elephant seals (Mirounga angustirostris), harbor seals
(Phoca vitulina), and California sea lions (Zalophus californianus).
(c) This Authorization is valid only for activities associated with
the launching of a total of 40 Vandal (or similar sized) vehicles from
Alpha Launch Complex and smaller missiles and targets from Building 807
on San Nicolas Island, California.
Sec. 216.152 Effective dates.
Regulations in this subpart are effective from October 2, 2003
through October 2, 2008.
Sec. 216.153 Permissible methods of taking; mitigation.
(a) Under a Letter of Authorization issued pursuant to Sec.
216.106, the U.S. Navy may incidentally, but not intentionally, take
those marine mammal species specified in Sec. 216.151(b) by Level B
harassment, in the course of conducting target missile launch activities
within the area described in Sec. 216.151(a), provided all terms,
conditions, and requirements of these regulations and such Letter of
Authorization are complied with.
(b) The activity specified in Sec. 216.151 must be conducted in a
manner that minimizes, to the greatest extent possible, adverse impacts
on marine mammals and their habitat. When conducting these activities,
the following mitigation measures must be utilized:
(1) The holder of the Letter of Authorization must prohibit
personnel from entering pinniped haul-out sites below the missile's
predicted flight path for 2 hours prior to planned missile launches.
(2) The holder of the Letter of Authorization must avoid launch
activities during harbor seal pupping season (February to April), when
operationally practicable.
(3) The holder of this Authorization must limit launch activities
during other pinniped pupping seasons, when operationally practicable.
(4) The holder of the Letter of Authorization must not launch Vandal
target missiles from the Alpha Complex at low elevation (less than 1,000
feet (304.8 m) on launch azimuths that pass close to pinniped haul-out
sites).
(5) The holder of the Letter of Authorization must avoid, where
practicable, launching multiple target missiles in quick succession over
haul-out sites, especially when young pups are present.
(6) The holder of the Letter of Authorization must limit launch
activities during nighttime hours when operationally practicable.
(7) Aircraft and helicopter flight paths must maintain a minimum
altitude of 1,000 feet (304.8 m) from pinniped haul-outs.
(8) If injurious or lethal take is discovered during monitoring
conducted under Sec. 216.155, the holder of the Letter of Authorization
must contact the Regional Administrator, Southwest Region, National
Marine Fisheries Service, or his/her designee, at (562) 980-4023 within
48 hours and, in cooperation with the National Marine Fisheries Service,
launch procedure, mitigation measures, and monitoring methods must be
reviewed and appropriate changes made prior to the next launch.
(9) If post-test surveys determine that an injurious or lethal take
of a marine mammal has occurred, the test procedure and the monitoring
methods must be reviewed and appropriate changes must be made prior to
conducting the next missile launch.
Sec. 216.154 Prohibitions.
Notwithstanding takings authorized by Sec. 216.151(b) and by a
Letter of Authorization issued under Sec. 216.106, the following
activities are prohibited:
(a) The taking of a marine mammal that is other than unintentional.
(b) The violation of, or failure to comply with, the terms,
conditions,
[[Page 73]]
and requirements of this part or a Letter of Authorization issued under
Sec. 216.106.
(c) The incidental taking of any marine mammal of a species not
specified, or in a manner not authorized, in this subpart.
Sec. 216.155 Requirements for monitoring and reporting.
(a) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, state or local agency monitoring the impacts of the activity on
marine mammals.
(b) The National Marine Fisheries Service must be notified
immediately of any changes or deletions to any portions of the proposed
monitoring plan submitted in accordance with the Letter of
Authorization.
(c) The holder of the Letter of Authorization must designate
biologically trained, on-site observer(s), approved in advance by the
National Marine Fisheries Service, to record the effects of the launch
activities and the resulting noise on pinnipeds.
(d) The holder of the Letter of Authorization must implement the
following monitoring measures:
(1) Visual Land-Based Monitoring. (i) Prior to each missile launch,
an observer(s) will place 3 autonomous digital video cameras overlooking
chosen haul-out sites located varying distances from the missile launch
site. Each video camera will be set to record a focal subgroup within
the larger haul-out aggregation for a maximum of 4 hours or as permitted
by the videotape capacity.
(ii) Systematic visual observations, by observers described in
paragraph (c) of this section, on pinniped presence and activity will be
conducted and recorded in a field logbook a minimum of 2 hours prior to
the estimated launch time and for at least 1 hour immediately following
the launch of all launch vehicles.
(iii) Documentation, both via autonomous video camera and human
observer, will consist of:
(A) Numbers and sexes of each age class in focal subgroups;
(B) Description and timing of launch activities or other disruptive
event(s);
(C) Movements of pinnipeds, including number and proportion moving,
direction and distance moved, and pace of movement;
(D) Description of reactions;
(E) Minimum distances between interacting and reacting pinnipeds;
(F) Study location;
(G) Local time;
(H) Substratum type;
(I) Substratum slope;
(J) Weather condition;
(K) Horizontal visibility; and
(L) Tide state.
(2) Acoustic Monitoring. (i) During all target missile launches,
calibrated recordings of the levels and characteristics of the received
launch sounds will be obtained from 3 different locations of varying
distances from the target missile's flight path. To the extent
practicable, these acoustic recording locations will correspond with the
haul-out sites where video and human observer monitoring is done.
(ii) Acoustic recordings will be supplemented by the use of radar
and telemetry systems to obtain the trajectory of target missiles in
three dimensions.
(iii) Acoustic equipment used to record launch sounds will be
suitable for collecting a wide range of parameters, including the
magnitude, characteristics, and duration of each target missile.
(e) The holder of the Letter of Authorization must implement the
following reporting requirements:
(1) For each target missile launch, the lead contractor or lead
observer for the holder of the Letter of Authorization must provide a
status report on the information required under Sec. 216.155(d)(1)(iii)
to the National Marine Fisheries Service, Southwest Regional Office,
unless other arrangements for monitoring are agreed in writing.
(2) An initial report must be submitted to the Office of Protected
Resources, and the Southwest Regional Office at least 60 days prior to
the expiration of each annual Letter of Authorization. This report must
contain the following information:
(i) Timing and nature of launch operations;
[[Page 74]]
(ii) Summary of pinniped behavioral observations;
(iii) Estimate of the amount and nature of all takes by harassment
or by other means.
(3) A draft comprehensive technical report will be submitted to the
Office of Protected Resources and Southwest Regional Office, National
Marine Fisheries Service, 180 days prior to the expiration of these
regulations and providing full documentation of the methods, results,
and interpretation of all monitoring tasks for launches to date plus
preliminary information for missile launches during the first 6 months
of the final Letter of Authorization.
(4) A revised final technical report, including all monitoring
results during the entire period of the Letter of Authorization, will be
due 90 days after the end of the period of effectiveness of these
regulations.
(5) Both the 60-day and draft comprehensive technical reports will
be subject to review and comment by the National Marine Fisheries
Service. Any recommendations made by the National Marine Fisheries
Service must be addressed in the final comprehensive report prior to
acceptance by the National Marine Fisheries Service.
(f) Activities related to the monitoring described in paragraph (d)
of this section, or in the Letter of Authorization issued under Sec.
216.106, may be conducted without the need for a separate scientific
research permit.
(g) In coordination and compliance with appropriate Navy
regulations, at its discretion, the National Marine Fisheries Service
may place an observer on San Nicolas Island for any activity involved in
marine mammal monitoring either prior to, during, or after a missile
launch in order to monitor the impact on marine mammals.
Sec. 216.156 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization but
may not exceed the period of validity of this subpart.
(b) A Letter of Authorization with a period of validity less than
the period of validity of this subpart may be renewed subject to renewal
conditions in Sec. 216.157.
(c) A Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Specified geographic area for taking;
(3) Means of effecting the least practicable adverse impact on the
species of marine mammals authorized for taking and its habitat; and
(4) Requirements for monitoring and reporting incidental takes.
(d) Issuance of a Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
will be small, and that the level of taking will be consistent with the
findings made for the total taking allowable under these regulations.
(e) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.157 Renewal of a Letter of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.156 for the activity specified in Sec. 216.151 will be renewed
annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application for a Letter of Authorization
submitted under Sec. 216.156 will be undertaken and that there will not
be a substantial modification to the described work, mitigation, or
monitoring undertaken during the upcoming season;
(2) Timely receipt of the monitoring reports required under Sec.
216.155, and acceptance by the National Marine Fisheries Service;
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring, and reporting measures required under
Sec. Sec. 216.153 and 216.155 and the Letter of Authorization were
undertaken and will be undertaken during the upcoming period of validity
of a renewed Letter of Authorization; and
(4) A determination that the number of marine mammals taken by the
activity continues to be small and that the level of taking will be
consistent with the findings made for the total
[[Page 75]]
taking allowable under these regulations.
(b) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.158 Modifications to the Letter of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification, including withdrawal or suspension, to the
Letter of Authorization issued pursuant to Sec. 216.106 and subject to
the provisions of this subpart shall be made until after notice and an
opportunity for public comment.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.151(b), the Letter of
Authorization issued pursuant to Sec. 216.106 may be substantively
modified without prior notice and an opportunity for public comment.
Notification will be published in the Federal Register subsequent to the
action.
Subpart O_Taking of Marine Mammals Incidental to Shock Testing the USS
MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the
Offshore Waters of the U.S. Atlantic Coast
Source: 73 FR 43136, July 24, 2007, unless otherwise noted.
Effective Date Note: At 73 FR 43136, July 24, 2008, subpart O,
consisting of Sec. Sec. 216.161 through 216.166 was added, effective
July 18, 2008 through July 18, 2013.
Sec. 216.161 Specified activity and incidental take levels by species.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by persons
engaged in the detonation of up to four 4,536 kg (10,000 lb)
conventional explosive charges within the waters of the U.S. Atlantic
Coast offshore Mayport, FL, for the purpose of conducting one full ship-
shock trial (FSST) of the USS MESA VERDE (LPD 19) during the time period
between July 23 and September 20, 2008, and May 1 and September 20, 2009
through 2013.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to the following
species: Minke whale (Balaenoptera acutorostrata), dwarf sperm whale
(Kogia simus); pygmy sperm whale (K. breviceps); pilot whale
(Globicephala macrorhynchus); Atlantic spotted dolphin (Stenella
frontalis); spinner dolphin (S. longirostris); bottlenose dolphin
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed
dolphin (Steno bredanensis); common dolphin (Delphinus delphis), false
killer whale (Pseudorca crassidens); Cuvier's beaked whale (Ziphius
cavirostris), Blainville's beaked whale (Mesoplodon densirostris);
Gervais' beaked whale (M. europaeus); and True's beaked whale (M.
mirus).
(c) The incidental take of marine mammals identified in paragraph
(b) of this section is limited to a total, across all species, of no
more than 1 mortality or serious injury, 2 takings by Level A harassment
(injuries), and 282 takings by Level B behavioral harassment (through
temporary threshold shift). The incidental taking of any species listed
as threatened or endangered under the Endangered Species Act is
prohibited.
Sec. 216.162 Effective dates.
Regulations in this subpart are effective July 18, 2008 through July
18, 2013.
Sec. 216.163 Mitigation.
(a) Under a Letter of Authorization issued pursuant to Sec.
216.106, the U.S. Navy may incidentally, but not intentionally, take
marine mammals in the course of the activity described in Sec.
216.161(a) provided all requirements of these regulations and such
Letter of Authorization are met.
(b) The activity identified in paragraph Sec. 216.161(a) of this
section must be conducted in a manner that minimizes, to the greatest
extent practicable, adverse impacts on marine mammals and their habitat.
When detonating explosives, the following mitigation measures must be
implemented:
[[Page 76]]
(1) Except as provided under the following paragraph (2), if any
marine mammals are visually detected within the designated 3.5 nm (6.5
km) Safety Range surrounding the USS MESA VERDE, detonation must be
delayed until the marine mammals are positively resighted outside the
Safety Range either due to the animal(s) swimming out of the Safety
Range or due to the Safety Range moving beyond the mammal's last
verified location.
(2) If a North Atlantic right whale or other marine mammal listed
under the Endangered Species Act (ESA) is seen within the Safety Range,
detonation must not occur until the animal is positively resighted
outside the Safety Range and at least one additional aerial monitoring
of the Safety Range shows that no other right whales or other ESA-listed
marine mammals are present;
(3) If the sea state exceeds 3 on the Beaufort scale (i.e.,
whitecaps on 33 to 50 percent of surface; 2 ft (0.6 m) to 3 ft (0.9 m)
waves), the visibility is equal to or less than 3 nm (5.6 km), or the
aircraft ceiling (i.e., vertical visibility) is equal to or less than
1,000 ft (305 m), detonation must not occur until conditions improve
sufficiently for aerial surveillance to be undertaken.
(4) A detonation must not be conducted earlier than 3 hours after
sunrise or later than 3 hours prior to sunset to ensure adequate
daylight for conducting the pre-detonation and post-detonation
monitoring requirements in Sec. 216.165;
(5) If post-detonation surveys determine that an injury or lethal
take of a marine mammal has occurred,
(i) the Director, Office of Protected Resources, National Marine
Fisheries Service must be notified within 24 hours of the taking
determination,
(ii) the FSST procedures and monitoring methods must be reviewed in
coordination with the National Marine Fisheries Service, and
(iii) appropriate changes to avoid future injury or mortality must
be made prior to conducting the next detonation.
Sec. 216.164 Prohibitions.
No person in connection with the activities described in Sec.
216.161(a) shall:
(a) Take any marine mammal not specified in Sec. 216.161(b);
(b) Take any marine mammal specified in Sec. 216.161(b) other than
by incidental, unintentional Level A or Level B harassment or mortality;
(c) Take a marine mammal specified in Sec. 216.161(b) if such
taking results in more than a negligible impact on the species or stocks
or marine mammals;
(d) Violate, or failure to comply with, the requirements of a Letter
of Authorization issued under Sec. 216.106.
Sec. 216.165 Requirements for monitoring and reporting.
(a) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, or state or local agency with regulatory authority for
monitoring the impacts of the activity on marine mammals. The holder
must notify the Director, Office of Protected Resources, National Marine
Fisheries Service at least 2 weeks prior to activities involving the
detonation of explosives in order to satisfy paragraph (f) of this
section.
(b) The holder of the Letter of Authorization must designate at
least 6 experienced on-site marine mammal observers (MMOs) onboard the
USS MESA VERDE, 2 experienced MMOs onboard the survey aircraft and 2
experienced MMOs onboard the Navy support vessel each of whom has been
approved in advance by NMFS, to monitor the Safety Range for presence of
marine mammals and to record the effects of explosives detonation on
marine mammals that inhabit the Navy's Jacksonville/Charleston Operating
Area offshore of Mayport, Florida.
(c)(1) Prior to each detonation for the FSST, an area will be
located which has been determined by an aerial survey to contain the
lowest marine mammal abundance relative to other areas within the area
off Mayport, FL.
(2) The test area must be monitored by aerial and shipboard
monitoring for the following periods of time:
(i) 48-72 hours prior to a scheduled detonation (aircraft only),
(ii) on the day of detonation,
[[Page 77]]
(iii) immediately after each detonation and continuing for at least
3 hours subsequent to each detonation (or until sighting conditions
become unsuitable for visual observations),
(iv) for at least 2 days after each detonation, unless weather and/
or sea conditions preclude surveillance, in which case post-test survey
dates must be extended, and
(v) for a period of 7 days after the last detonation for a minimum
of 3 hours per day at the detonation site and down-current from the
site.
(3) Monitoring shall include, but is not limited to, aerial and
vessel surveillance sufficient to ensure that no marine mammals are
within the designated Safety Range prior to or at the time of
detonation.
(d) Under the direction of an attending U.S.-licensed veterinarian
(an attending U.S. licensed veterinarian is one who has graduated from a
veterinary school accredited by the American Veterinary Medical
Association Council on Education, has a certificate by the American
Veterinary Graduates Association's Education Commission for Foreign
Veterinary Graduates, or has received equivalent formal education, as
determined by the NMFS Assistant Administrator), an examination and
recovery of any dead or injured marine mammals will be conducted in
accordance with protocols and best practices of the NOAA Health and
Stranding Response Program. Necropsies will be performed and tissue
samples taken from any dead animals. After completion of the necropsy,
animals not retained for shoreside examination will be tagged and
returned to the sea.
(e) Activities related to the monitoring described in paragraphs (c)
and (d) of this section, including the retention of marine mammals, may
be conducted without a separate scientific research permit. The use of
retained marine mammals for scientific research other than shoreside
examination must be authorized pursuant to Subpart D of this part.
(f) Subject to relevant Navy regulations, the National Marine
Fisheries Service at its discretion may place an observer on any ship or
aircraft involved in marine mammal monitoring either prior to, during,
or after explosives detonation.
(g) A final report must be submitted to the Director, Office of
Protected Resources, no later than 120 days after completion of the USS
MESA VERDE (LPD 19) shock trial. This report must contain the following
information:
(1) Date and time of all detonations conducted under the Letter of
Authorization.
(2) A detailed description of all pre-detonation and post-detonation
activities related to mitigating and monitoring the effects of
explosives detonation on marine mammals.
(3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the
detonation and an estimate of the number, by species, of marine mammals
in the Safety Range at the time of detonation based on post-test aerial
monitoring and current density estimates.
(4) Results of coordination with coastal marine mammal/sea turtle
stranding networks.
Sec. 216.166 Modifications to the Letter of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification, including withdrawal or suspension, to a
Letter of Authorization issued pursuant to Sec. 216.106 and subject to
the provisions of this subpart shall be made until after notice and an
opportunity for public comment.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.151(b), the Letter of
Authorization may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published in
the Federal Register subsequent to the action.
Subpart P [Reserved]
[[Page 78]]
Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA
sonar) Sonar
Source: 72 FR 46890, Aug. 21, 2007, unless otherwise noted.
Effective Date Note: At 72 FR 46890, Aug. 21, 2007, subpart Q,
consisting of Sec. Sec. 216.180 through 216.191 were added, effective
Aug. 16, 2007 through Aug. 15, 2012.
Sec. 216.180 Specified activity.
Regulations in this subpart apply only to the incidental taking of
those marine mammal species specified in paragraph (b) of this section
by the U.S. Navy, Department of Defense, while engaged in the operation
of no more than four SURTASS LFA sonar systems conducting active sonar
operations, in areas specified in paragraph (a) of this section. The
authorized activities, as specified in a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.188, include the transmission of low
frequency sounds from the SURTASS LFA sonar and the transmission of high
frequency sounds from the mitigation sonar described in Sec. 216.185
during training, testing, and routine military operations of SURTASS LFA
sonar.
(a) With the exception of those areas specified in Sec. 216.183(d),
the incidental taking by harassment may be authorized in the areas
(biomes, provinces, and subprovinces) described in Longhurst (1998), as
specified in a Letter of Authorization.
(b) The incidental take, by Level A and Level B harassment, of
marine mammals from the activity identified in this section is limited
to the following species and species groups:
(1) Mysticete whales--blue (Balaenoptera musculus), fin
(Balaenoptera physalus), minke (Balaenoptera acutorostrata), Bryde's
(Balaenoptera edeni), sei (Balaenoptera borealis), humpback (Megaptera
novaeangliae), North Atlantic right (Eubalaena glacialis), North Pacific
right (Eubalena japonica) southern right (Eubalaena australis), pygmy
right (Capera marginata), bowhead (Balaena mysticetus), and gray
(Eschrichtius robustus) whales.
(2) Odontocete whales--harbor porpoise (Phocoena phocoena),
spectacled porpoise (Phocoena dioptrica), beluga (Dephinapterus leucas),
Stenella spp., Risso's dolphin (Grampus griseus), rough-toothed dolphin
(Steno bredanensis), Fraser's dolphin (Lagenodelphis hosei), northern
right-whale dolphin (Lissodelphis borealis), southern right whale
dolphin (Lissodelphis peronii), short-beaked common dolphin (Delphius
delphis), long-beaked common dolphin (Delphinus capensis), very long-
beaked common dolphin (Delphinus tropicalis), Lagenorhynchus spp.,
Cephalorhynchus spp., bottlenose dolphin (Tursiops truncatus), Dall's
porpoise (Phocoenoides dalli), melon-headed whale (Peponocephala spp.),
beaked whales (Berardius spp., Hyperoodon spp., Mesoplodon spp.,
Cuvier's beaked whale (Ziphius cavirostris), Shepard's beaked whale
(Tasmacetus shepherdi), Longman's beaked whale (Indopacetus pacificus),
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens),
pygmy killer whale (Feresa attenuata), sperm whale (Physeter
macrocephalus), dwarf and pygmy sperm whales (Kogia simus and K.
breviceps), and short-finned and long-finned pilot whales (Globicephala
macrorhynchus and G. melas).
(3) Pinnipeds--hooded seal (Cystophora cristata), harbor seal (Phoca
vitulina), spotted seal (P. largha), ribbon seal (P. fasciata), gray
seal (Halichoerus grypus), elephant seal (Mirounga angustirostris and M.
leonina), Hawaiian monk seal (Monachus schauinslandi), Mediterranean
monk seal (Monachus monachus), northern fur seal (Callorhinus ursinus),
southern fur seal (Arctocephalus spp.), harp seal (Phoca groenlandica),
Galapagos sea lion (Zalophus californianus wollebaeki), Japanese sea
lion (Zalophus californianus japonicus), Steller sea lion (Eumetopias
jubatus), California sea lion (Zalophus californianus), Australian sea
lion (Neophoca cinerea), New Zealand sea lion (Phocarctos hookeri), and
South American sea lion (Otaria flavescens).
[[Page 79]]
Sec. 216.181 Effective dates.
Regulations in this subpart are effective from August 16, 2007
through August 15, 2012.
Sec. 216.182 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.188, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by Level A and
Level B harassment within the areas described in Sec. 216.180(a),
provided the activity is in compliance with all terms, conditions, and
requirements of these regulations and the appropriate Letter of
Authorization.
(b) The activities identified in Sec. 216.180 must be conducted in
a manner that minimizes, to the greatest extent practicable, any adverse
impacts on marine mammals and their habitat.
Sec. 216.183 Prohibitions.
No person in connection with the activities described in Sec.
216.180 shall:
(a) Take any marine mammal not specified in Sec. 216.180(b);
(b) Take any marine mammal specified in Sec. 216.180(b) other than
by incidental, unintentional Level A and Level B harassment;
(c) Take a marine mammal specified in Sec. 216.180(b) if such
taking results in more than a negligible impact on the species or stocks
of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of the regulations in this subpart or any Letter of
Authorization issued under Sec. Sec. 216.106 and 216.188.
Sec. 216.184 Mitigation.
The activity identified in Sec. 216.180(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting operations
identified in Sec. 216.180, the mitigation measures described in this
section and in any Letter of Authorization issued under Sec. Sec.
216.106 and 216.188 must be implemented.
(a) Through monitoring described under Sec. 216.185, the Holder of
a Letter of Authorization must act to ensure, to the greatest extent
practicable, that no marine mammal is subjected to a sound pressure
level of 180 dB or greater.
(b) If a marine mammal is detected within or about to enter the
mitigation zone (the area subjected to sound pressure levels of 180 dB
or greater plus the 1 km (0.54 nm) buffer zone extending beyond the 180-
dB zone), SURTASS LFA sonar transmissions will be immediately delayed or
suspended. Transmissions will not resume earlier than 15 minutes after:
(1) All marine mammals have left the area of the mitigation and
buffer zones; and
(2) There is no further detection of any marine mammal within the
mitigation and buffer zones as determined by the visual and/or passive
or active acoustic monitoring described in Sec. 216.185.
(c) The high-frequency marine mammal monitoring sonar (HF/M3)
described in Sec. 216.185 will be ramped-up slowly to operating levels
over a period of no less than 5 minutes:
(1) At least 30 minutes prior to any SURTASS LFA sonar
transmissions;
(2) Prior to any SURTASS LFA sonar calibrations or testings that are
not part of regular SURTASS LFA sonar transmissions described in
paragraph (c)(1) of this section; and
(3) Anytime after the HF/M3 source has been powered down for more
than 2 minutes.
(d) The HF/M3 sound pressure level will not be increased once a
marine mammal is detected; ramp-up may resume once marine mammals are no
longer detected.
(e) The Holder of a Letter of Authorization will not operate the
SURTASS LFA sonar, such that:
(1) the SURTASS LFA sonar sound field exceeds 180 dB (re 1
microPa(rms)) at a distance less than 12 nautical miles (nm) (22
kilometers (km)) from any coastline, including offshore islands;
(2) the SURTASS LFA sonar sound field exceeds 180 db (re 1
microPa(rms)) at a distance of 1 km (0.5 nm) seaward of the outer
perimeter of any offshore biologically important area designated in
216.184(f) during the biologically important period specified.
[[Page 80]]
(f) The following areas have been designated by NMFS as Offshore
Biologically Important Areas (OBIAs) for marine mammals (by season if
appropriate):
------------------------------------------------------------------------
Months of
Name of area Location of area importance
------------------------------------------------------------------------
(1) 200-m isobath North From 28[deg] N. to Year-round.
American East Coast. 50[deg] N., west of
40[deg] W.
(2) Antarctic Convergence 30[deg] E. to 80[deg] E. October 1-March
Zone. to 45[deg]; 80[deg] E. 31.
to 150[deg] E. to
55[deg]; S. 150[deg] E.
to 50[deg] W. to
60[deg] S.; 50[deg] W.
to 30[deg] E. to
50[deg] S.
(3) Costa Rica Dome.......... Centered at 9[deg] N. Year-round.
and 88[deg] W.
(4) Hawaiian Islands Humpback Centered at 21[deg] N. November 1
Whale National Marine and 157[deg] 30' W. through May 1.
Sanctuary-Penguin Bank.
(5) Cordell Bank National Boundaries in accordance Year-round.
Marine Sanctuary. with 15 CFR 922.110.
(6) Gulf of the Farallones Boundaries in accordance Year-round.
National Marine Sanctuary. with 15 CFR 922.80.
(7) Monterey Bay National Boundaries in accordance Year-round.
Marine Sanctuary. with 15 CFR 922.30.
(8) Olympic Coast National Boundaries within 23 nm December
Marine Sanctuary. of the coast from January, March
47[deg]07[min] N. to and May.
48[deg]30[min] N.
latitude.
(9) Flower Garden Banks Boundaries in accordance Year-round.
National Marine Sanctuary. with 15 CFR 922.120.
(10) The Gully............... 44[deg]13[min] N., Year-round.
59[deg]06[min] W. to
43[deg]47[min] N.;
58[deg]35[min] W. to
43[deg]35[min] N.;
58[deg]35[min] W. to
43[deg]35[min] N.;
59[deg]08[min] W. to
44[deg]06[min] N.;
59[deg]20[min] W.
------------------------------------------------------------------------
Sec. 216.185 Requirements for monitoring.
(a) In order to mitigate the taking of marine mammals by SURTASS LFA
sonar to the greatest extent practicable, the Holder of a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.188 must:
(1) Conduct visual monitoring from the ship's bridge during all
daylight hours (30 minutes before sunrise until 30 minutes after
sunset);
(2) Use low frequency passive SURTASS sonar to listen for vocalizing
marine mammals; and
(3) Use the HF/M3 (high frequency) sonar developed to locate and
track marine mammals in relation to the SURTASS LFA sonar vessel and the
sound field produced by the SURTASS LFA sonar source array.
(b) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar
transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the
SURTASS LFA sonar transmission exercise, or, if marine mammals are
exhibiting unusual changes in behavioral patterns, for a period of time
until behavior patterns return to normal or conditions prevent continued
observations;
(c) Holders of Letters of Authorization for activities described in
Sec. 216.180 are required to cooperate with the National Marine
Fisheries Service and any other federal agency for monitoring the
impacts of the activity on marine mammals.
(d) Holders of Letters of Authorization must designate qualified on-
site individuals to conduct the mitigation, monitoring and reporting
activities specified in the Letter of Authorization.
(e) Holders of Letters of Authorization must conduct all monitoring
required under the Letter of Authorization.
Sec. 216.186 Requirements for reporting.
(a) The Holder of the Letter of Authorization must submit quarterly
mission reports to the Director, Office of Protected Resources, NMFS, no
later than 30 days after the end of each quarter beginning on the date
of effectiveness of a Letter of Authorization or as specified in the
appropriate Letter of Authorization. Each quarterly mission report will
include all active-mode missions completed during that quarter. At a
minimum, each classified mission report must contain the following
information:
[[Page 81]]
(1) Dates, times, and location of each vessel during each mission;
(2) Information on sonar transmissions during each mission;
(3) Results of the marine mammal monitoring program specified in the
Letter of Authorization; and
(4) Estimates of the percentages of marine mammal species and stocks
affected (both for the quarter and cumulatively for the year) covered by
the Letter of Authorization.
(b) The Holder of a Letter of Authorization must submit an annual
report to the Director, Office of Protected Resources, NMFS, no later
than 45 days after the expiration of a Letter of Authorization. This
report must contain all the information required by the Letter of
Authorization.
(c) A final comprehensive report must be submitted to the Director,
Office of Protected Resources, NMFS at least 240 days prior to
expiration of these regulations. In addition to containing all the
information required by any final year Letter of Authorization, this
report must contain an unclassified analysis of new passive sonar
technologies and an assessment of whether such a system is feasible as
an alternative to SURTASS LFA sonar.
Sec. 216.187 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. Navy authority conducting the activity identified
in Sec. 216.180 must apply for and obtain a Letter of Authorization in
accordance with Sec. 216.106.
(b) The application for a Letter of Authorization must be submitted
to the Director, Office of Protected Resources, NMFS, at least 60 days
before the date that either the vessel is scheduled to begin conducting
SURTASS LFA sonar operations or the previous Letter of Authorization is
scheduled to expire.
(c) All applications for a Letter of Authorization must include the
following information:
(1) The date(s), duration, and the area(s) where the vessel's
activity will occur;
(2) The species and/or stock(s) of marine mammals likely to be found
within each area;
(3) The type of incidental taking authorization requested (i.e.,
take by Level A and/or Level B harassment);
(4) The estimated percentage of marine mammal species/stocks
potentially affected in each area for the 12-month period of
effectiveness of the Letter of Authorization; and
(5) The means of accomplishing the necessary monitoring and
reporting that will result in increased knowledge of the species and the
level of taking or impacts on marine mammal populations.
(d) The National Marine Fisheries Service will review an application
for a Letter of Authorization in accordance with Sec. 216.104(b) and,
if adequate and complete, issue a Letter of Authorization.
Sec. 216.188 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked will be
valid for a period of time not to exceed one year, but may be renewed
annually subject to annual renewal conditions in Sec. 216.189.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Authorized geographic areas for incidental takings;
(3) Means of effecting the least practicable adverse impact on the
species of marine mammals authorized for taking, their habitat, and the
availability of the species for subsistence uses; and
(4) Requirements for monitoring and reporting incidental takes.
(c) Issuance of each Letter of Authorization will be based on a
determination that the total number of marine mammals taken by the
activity specified in Sec. 216.180 as a whole will have no more than a
negligible impact on the species or stocks of affected marine mammal(s),
and that the total taking will not have an unmitigable adverse impact on
the availability of species or stocks of marine mammals for taking for
subsistence uses.
(d) Notice of issuance or denial of an application for a Letter of
Authorization will be published in the Federal
[[Page 82]]
Register within 30 days of a determination.
Sec. 216.189 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued for the activity identified in
Sec. 216.180 may be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 216.187 will be undertaken and that
there will not be a substantial modification to the described activity,
mitigation or monitoring undertaken during the upcoming season;
(2) Notification to NMFS of the information identified in Sec.
216.187(c), including the planned geographic area(s), and anticipated
duration of each SURTASS LFA sonar operation;
(3) Timely receipt of the monitoring reports required under Sec.
216.185, which have been reviewed by NMFS and determined to be
acceptable;
(4) A determination by NMFS that the mitigation, monitoring and
reporting measures required under Sec. Sec. 216.184 and 216.185 and the
previous Letter of Authorization were undertaken and will be undertaken
during the upcoming annual period of validity of a renewed Letter of
Authorization; and
(5) A determination by NMFS that the number of marine mammals taken
by the activity as a whole will have no more than a negligible impact on
the species or stock of affected marine mammal(s), and that the total
taking will not have an unmitigable adverse impact on the availability
of species or stocks of marine mammals for taking for subsistence uses.
(b) If a request for a renewal of a Letter of Authorization
indicates that a substantial modification to the described work,
mitigation or monitoring will occur, or if NMFS proposes a substantial
modification to the Letter of Authorization, NMFS will provide a period
of 30 days for public review and comment on the proposed modification.
Amending the areas for upcoming SURTASS LFA sonar operations is not
considered a substantial modification to the Letter of Authorization.
(c) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.190 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantial modification (including withdrawal or suspension) to a
Letter of Authorization subject to the provisions of this subpart shall
be made by NMFS until after notification and an opportunity for public
comment has been provided. For purposes of this paragraph, a renewal of
a Letter of Authorization, without modification, except for the period
of validity and a listing of planned operating areas, or for moving the
authorized SURTASS LFA sonar system from one ship to another, is not
considered a substantial modification.
(b) If the National Marine Fisheries Service determines that an
emergency exists that poses a significant risk to the well-being of the
species or stocks of marine mammals specified in Sec. 216.180(b), a
Letter of Authorization may be substantially modified without prior
notice and opportunity for public comment. Notification will be
published in the Federal Register within 30 days of the action.
Sec. 216.191 Designation of Offshore Biologically Important Marine
Mammal Areas.
(a) Offshore biologically important areas for marine mammals may be
nominated under this paragraph by the National Marine Fisheries Service
or by members of the public.
(b) Proponents must petition NMFS by requesting an area be added to
the list of offshore biologically important areas in Sec. 216.184(f)
and submitting the following information:
(1) Geographic region proposed for consideration (including
geographic boundaries);
(2) A list of marine mammal species or stocks within the proposed
geographic region;
(3) Whether the proposal is for year-round designation or seasonal,
and if seasonal, months of years for proposed designation;
(4) Detailed information on the biology of marine mammals within the
area, including estimated population
[[Page 83]]
size, distribution, density, status, and the principal biological
activity during the proposed period of designation sufficient for NMFS
to make a preliminary determination that the area is biologically
important for marine mammals; and
(5) Detailed information on the area with regard to its importance
for feeding, breeding, or migration for those species of marine mammals
that have the potential to be affected by low frequency sounds;
(c) Areas within 12 nm (22 km) of any coastline, including offshore
islands, or within non-operating areas for SURTASS LFA sonar are not
eligible for consideration.
(d) If a petition does not contain sufficient information for the
National Marine Fisheries Service to proceed, NMFS will determine
whether the nominated area warrants further study. If so, NMFS will
begin a scientific review of the area.
(e)(1) If through a petition or independently, NMFS makes a
preliminary determination that an offshore area is biologically
important for marine mammals and is not located within a previously
designated area, NMFS will publish a Federal Register notice proposing
to add the area to Sec. 216.184(f) and solicit public comment.
(2) The National Marine Fisheries Service will publish its final
determination in the Federal Register.
Subpart R_Taking of Marine Mammals Incidental to Construction and
Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea
Source: 71 FR 11322, Mar. 7, 2006, unless otherwise noted.
Effective Date Note: At 71 FR 11322, Mar. 7, 2006, subpart R,
consisting of Sec. Sec. 216.200 through 216.210 were added, effective
Apr. 6, 2006 through Apr. 6, 2011.
Sec. 216.200 Specified activity and specified geographical region.
Regulations in this subpart apply only to the incidental taking of
those marine mammal species specified in paragraph (b) of this section
by U.S. citizens engaged in oil and gas development activities in areas
within state and/or Federal waters in the U.S. Beaufort Sea specified in
paragraph (a) of this section. The authorized activities as specified in
a Letter of Authorization issued under Sec. Sec. 216.106 and 216.208
include, but may not be limited to, site construction, including ice
road and pipeline construction, vessel and helicopter activity; and oil
production activities, including ice road construction, and vessel and
helicopter activity, but excluding seismic operations.
(a)(1) Northstar Oil and Gas Development; and
(2) [Reserved]
(b) The incidental take by Level A harassment, Level B harassment or
mortality of marine mammals under the activity identified in this
section is limited to the following species: bowhead whale (Balaena
mysticetus), gray whale (Eschrichtius robustus), beluga whale
(Delphinapterus leucas), ringed seal (Phoca hispida), spotted seal
(Phoca largha) and bearded seal (Erignathus barbatus).
Sec. 216.201 Effective dates.
Regulations in this subpart are effective from April 6, 2006 through
April 6, 2011.
Sec. 216.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.208, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by Level A and
Level B harassment and mortality within the area described in Sec.
216.200(a), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The activities identified in Sec. 216.200 must be conducted in
a manner that minimizes, to the greatest extent practicable, any adverse
impacts on marine mammals, their habitat, and on the availability of
marine mammals for subsistence uses.
Sec. 216.203 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.200 and authorized
by a Letter of Authorization issued under
[[Page 84]]
Sec. Sec. 216.106 and 216.208, no person in connection with the
activities described in Sec. 216.200 shall:
(a) Take any marine mammal not specified in Sec. 216.200(b);
(b) Take any marine mammal specified in Sec. 216.200(b) other than
by incidental, unintentional Level A or Level B harassment or mortality;
(c) Take a marine mammal specified in Sec. 216.200(b) if such
taking results in more than a negligible impact on the species or stocks
of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. 216.106.
Sec. 216.204 Mitigation.
The activity identified in Sec. 216.200(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting operations
identified in Sec. 216.200, the mitigation measures contained in the
Letter of Authorization issued under Sec. Sec. 216.106 and 216.208 must
be utilized.
Sec. 216.205 Measures to ensure availability of species for
subsistence uses.
When applying for a Letter of Authorization pursuant to Sec.
216.207, or a renewal of a Letter of Authorization pursuant to Sec.
216.209, the applicant must submit a Plan of Cooperation that identifies
what measures have been taken and/or will be taken to minimize any
adverse effects on the availability of marine mammals for subsistence
uses. A plan must include the following:
(a) A statement that the applicant has notified and met with the
affected subsistence communities to discuss proposed activities and to
resolve potential conflicts regarding timing and methods of operation;
(b) A description of what measures the applicant has taken and/or
will take to ensure that oil development activities will not interfere
with subsistence whaling or sealing;
(c) What plans the applicant has to continue to meet with the
affected communities to notify the communities of any changes in
operation.
Sec. 216.206 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.208 for activities described in Sec. 216.200
are required to cooperate with the National Marine Fisheries Service,
and any other Federal, state or local agency monitoring the impacts of
the activity on marine mammals. Unless specified otherwise in the Letter
of Authorization, the Holder of the Letter of Authorization must notify
the Administrator, Alaska Region, National Marine Fisheries Service, or
his/her designee, by letter or telephone, at least 2 weeks prior to
initiating new activities potentially involving the taking of marine
mammals.
(b) Holders of Letters of Authorization must designate qualified on-
site individuals, approved in advance by the National Marine Fisheries
Service, to conduct the mitigation, monitoring and reporting activities
specified in the Letter of Authorization issued pursuant to Sec.
216.106 and Sec. 216.208.
(c) Holders of Letters of Authorization must conduct all monitoring
and/or research required under the Letter of Authorization.
(d) Unless specified otherwise in the Letter of Authorization, the
Holder of that Letter of Authorization must submit an annual report to
the Director, Office of Protected Resources, National Marine Fisheries
Service, no later than March 31 of the year following the conclusion of
the previous open water monitoring season. This report must contain all
information required by the Letter of Authorization.
(e) A final annual comprehensive report must be submitted within the
time period specified in the governing Letter of Authorization.
(f) A final comprehensive report on all marine mammal monitoring and
research conducted during the period of these regulations must be
submitted to the Director, Office of Protected Resources, National
Marine Fisheries Service at least 240 days prior to expiration of these
regulations or 240 days
[[Page 85]]
after the expiration of these regulations if renewal of the regulations
will not be requested.
Sec. 216.207 Applications for Letters of Authorization.
(a) To incidentally take bowhead whales and other marine mammals
pursuant to these regulations, the U.S. citizen (see definition at Sec.
216.103) conducting the activity identified in Sec. 216.200 must apply
for and obtain either an initial Letter of Authorization in accordance
with Sec. Sec. 216.106 and 216.208, or a renewal under Sec. 216.209.
(b) The application for an initial Letter of Authorization must be
submitted to the National Marine Fisheries Service at least 180 days
before the activity is scheduled to begin.
(c) Applications for initial Letters of Authorization must include
all information items identified in Sec. 216.104(a).
(d) NMFS will review an application for an initial Letter of
Authorization in accordance with Sec. 216.104(b) and, if adequate and
complete, will publish a notice of receipt of a request for incidental
taking and a proposed amendment to Sec. 216.200(a). In conjunction with
amending Sec. 216.200(a), the National Marine Fisheries Service will
provide for public comment on the application for an initial Letter of
Authorization.
(e) Upon receipt of a complete application for an initial Letter of
Authorization, and at its discretion, the National Marine Fisheries
Service may submit the monitoring plan to members of a peer review panel
for review and/or schedule a workshop to review the plan. Unless
specified in the Letter of Authorization, the applicant must submit a
final monitoring plan to the Assistant Administrator prior to the
issuance of an initial Letter of Authorization.
Sec. 216.208 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time not to exceed the period of validity of this
subpart, but must be renewed annually subject to annual renewal
conditions in Sec. 216.209.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including any
requirements for the independent peer-review of proposed monitoring
plans.
(c) Issuance and renewal of each Letter of Authorization will be
based on a determination that the number of marine mammals taken by the
activity will be small, that the total number of marine mammals taken by
the activity as a whole will have no more than a negligible impact on
the species or stock of affected marine mammal(s), and will not have an
unmitigable adverse impact on the availability of species or stocks of
marine mammals for taking for subsistence uses.
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.209 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.208 for the activity identified in Sec. 216.200 will be renewed
annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application submitted under Sec. 216.207 will
be undertaken and that there will not be a substantial modification to
the described work, mitigation or monitoring undertaken during the
upcoming season;
(2) Timely receipt of the monitoring reports required under Sec.
216.205, and the Letter of Authorization issued under Sec. 216.208,
which have been reviewed and accepted by the National Marine Fisheries
Service, and of the Plan of Cooperation required under Sec. 216.205;
and
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under Sec.
216.204 and the Letter of Authorization issued under Sec. Sec. 216.106
and 216.208, were undertaken and will be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.208 indicates that a
[[Page 86]]
substantial modification to the described work, mitigation or monitoring
undertaken during the upcoming season will occur, the National Marine
Fisheries Service will provide the public a minimum of 30 days for
review and comment on the request. Review and comment on renewals of
Letters of Authorization are restricted to:
(1) New cited information and data that indicates that the
determinations made in this document are in need of reconsideration,
(2) The Plan of Cooperation, and
(3) The proposed monitoring plan.
(c) A notice of issuance or denial of a Renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.210 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the
Letter of Authorization by the National Marine Fisheries Service, issued
pursuant to Sec. Sec. 216.106 and 216.208 and subject to the provisions
of this subpart shall be made until after notification and an
opportunity for public comment has been provided. For purposes of this
paragraph, a renewal of a Letter of Authorization under Sec. 216.209,
without modification (except for the period of validity), is not
considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.200(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.208 may be
substantively modified without prior notification and an opportunity for
public comment. Notification will be published in the Federal Register
within 30 days subsequent to the action.
Subpart S Taking of Marine Mammals Incidental to Explosive Severance
Activities Conducted During Offshore Structure Removal Operations on the
Outer Continental Shelf in the U.S. Gulf of Mexico
Source: 73 FR 34889, June 19, 2008, unless otherwise noted.
Effective Date Note: At 73 FR 34889, June 19, 2008, subpart S,
consisting of Sec. Sec. 216.211 through 216.219 were added, effective
July 21, 2008 through July 19, 2013.
Sec. 216.211 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by U.S. citizens engaged in explosive severance activities
conducted during offshore oil and gas structure removal activities in
areas within state and Federal waters in the U.S. Gulf of Mexico
adjacent to the coasts of Texas, Mississippi, Louisiana, Alabama, and
Florida. The incidental, but not intentional, taking of marine mammals
by U.S. citizens holding a Letter of Authorization issued pursuant to
Sec. 216.218 is permitted during the course of severing pilings, well
conductors, and related supporting structures, and other activities
related to the removal of the oil and gas structure.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to a total of 5
bottlenose dolphin, one Atlantic spotted dolphin, and one pantropical
spotted dolphin by Level A harassment over the period of validity of
these regulations; and Level B harassment of the following species
annually: 227 bottlenose dolphins, 65 Atlantic spotted dolphins, 77
pantropical spotted dolphins, 27 Clymene dolphins, 12 rough-toothed
dolphins, 14 striped dolphins, 15 melon-headed whales, 10 pilot whales,
5 spinner dolphins, 3 Risso's dolphins, and 2 sperm whales.
Sec. 216.212 Effective dates.
Regulations in this subpart are effective from July 21, 2008 until
July 19, 2013.
[[Page 87]]
Sec. 216.213 Permissible methods of taking.
The Holder of a Letter of Authorization issued pursuant to Sec.
216.218, may incidentally, but not intentionally, take marine mammals by
harassment within the area described in Sec. 216.211(a), provided the
activity is in compliance with all terms, conditions, and requirements
of these regulations and the appropriate Letter of Authorization.
Sec. 216.214 Prohibitions.
No person in connection with the activities described in Sec.
216.211(a) shall:
(a) Take any marine mammal not specified in Sec. 216.211(b);
(b) Take any marine mammal specified in Sec. 216.211(b) in a manner
or amount greater than described therein;
(c) Take any marine mammal specified in Sec. 216.211(b) if NMFS
determines that the taking of marine mammals incidental to the
activities described in Sec. 216.211(a) is having more than a
negligible impact on the species or stocks of marine mammals;
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
pursuant to Sec. Sec. 216.106 and 216.218;
(e) Take any marine mammal in violation of these regulations by
using a charge with a weight greater than 500 lbs (227 kg);
(f) Take any marine mammal when conditions preclude conducting
mitigation and monitoring requirements of these regulations or a Letter
of Authorization.
Sec. 216.215 Definitions, terms, and criteria
(a) Definitions.
(1) Below-mud-line or BML means that the explosives are detonated
below the water-mud interface, either inside or outside a pipe, other
structure or cable.
(2) Above-mud-line or AML means that the explosives are detonated in
the water column above the water-mud interface, either inside or outside
a pipe, other structure or cable.
(3) Multiple charge detonation means any explosive configuration
where more than one charge is required in a single detonation event.
(4) Scenario means an alpha-numeric designation provided to describe
charge size, activity location, and target design employed in order to
determine the appropriate marine mammal mitigation/monitoring measures.
(b) Terms
(1) Impact zone (required for all scenarios) means the area around a
decommissioning target measured by the horizontal radius, in which a
marine mammal could be affected by the pressure or acoustic energy
released during the detonation of an explosive-severance charge.
(2) Predetonation survey (required for all scenarios) means any
marine mammal monitoring survey (e.g., surface, aerial, or acoustic)
conducted prior to the detonation of any explosive severance tool.
(3) Postdetonation survey (required for all scenarios) means any
marine mammal monitoring survey (e.g., surface, aerial, or post-post-
detonation aerial) conducted after the detonation event occurs.
(4) Waiting period (required for all scenarios) means the amount of
time detonation operations must hold before the requisite monitoring
survey(s) can be repeated.
(5) Company observer (for scenarios A1-A4 only) means trained
company observers authorized to perform marine mammal detection surveys
only for ``very-small'' blasting scenarios A1-A4.
(6) NMFS observer (for scenarios B1-E4) means observers trained and
approved by an instructor with experience as a NMFS Platform Removal
Observer Program trainer. NMFS observers are required to perform marine
mammal detection surveys for all detonation scenarios with the exception
of scenarios A1-A4. Two NMFS observers will be assigned to each
operation for detection survey duties, except mitigation-scenarios C2,
C4, D2, D4, E2, and E4 require a minimum of three NMFS observers for the
simultaneous surface, aerial, and acoustic surveys.
(c) Criteria
(1) Blasting category parameters and associated severance scenarios.
To determine the appropriate marine mammal mitigation and monitoring
requirements in Sec. Sec. 216.218 and 216.219, holders
[[Page 88]]
of Letters of Authorization for activities described in Sec. 216.211(a)
of this subpart must determine, from Table 1 in Sec. 216.217(b)(1), the
appropriate explosive severance mitigation/monitoring scenario to follow
for the blasting category, species-delineation zone, and charge
configuration for their activity.
(2) [Reserved]
Sec. 216.216 Mitigation.
(a) The activity identified in Sec. 216.211(a) must be conducted in
a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitats. When conducting operations
identified in Sec. 216.211(a), all mitigation measures contained in
this subpart and in the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.218 must be implemented. When using
explosives, the following mitigation measures must be carried out:
(1)(i) If marine mammals are observed within (or about to enter) the
marine mammal impact zone identified in Table 1 in Sec. 216.217(b)(1)
column 5 for the relevant charge range and configuration (i.e., BML or
AML) for the activity, detonation must be delayed until the marine
mammal(s) are outside that zone;
(ii) Pre-detonation surveys shall not begin prior to sunrise and
detonations shall not occur if the post-detonation survey cannot be
concluded prior to sunset;
(iii) Whenever weather or sea conditions preclude adequate aerial,
shipboard or subsurface marine mammal monitoring as determined by the
trained observer, detonations must be delayed until conditions improve
sufficiently for marine mammal monitoring to be undertaken or resumed;
(iv) Whenever the weather or sea conditions prevent implementation
of the aerial survey monitoring required under Sec. 216.217(c)(2), the
aerial survey must be repeated prior to detonation of charges; and
(v) Multiple charge detonations must be staggered at an interval of
0.9 sec (900 msec) between blasts.
(2) [Reserved]
(b) If a marine mammal is found seriously injured, or dead, the
explosive severance activity will immediately cease and the holder of
the Letter of Authorization, designee or the designated lead observer
will contact the Minerals Management Service and the Regional
Administrator, National Marine Fisheries Service' Southeast Regional
Office, or designee at the earliest opportunity. Procedures and
monitoring methods will be reviewed and, if necessary, appropriate
changes made to the mitigation and monitoring measures prior to
conducting the next detonation to avoid future injury or mortality
takings.
(c) Any mitigation measures proposed to be contained in a Letter of
Authorization that are not specified in this subpart, or not considered
an emergency requirement under Sec. 216.219(d), will first be subject
to notice and comment through publication in the Federal Register, as
provided in Sec. 216.219(c).
Sec. 216.217 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization issued for activities
described in Sec. 216.211(a) are required to cooperate with the
National Marine Fisheries Service, and any other Federal, state or local
agency with regulatory authority over the offshore oil-and-gas
activities for the purpose of monitoring the impacts of the activity on
marine mammals.
(b)(1) Table 1 summarizes the required mitigation and monitoring
survey modes, duration and zones for all blasting scenarios of marine
mammal impact zones for implementation of surface and aerial monitoring
requirements depending upon charge weight and severance scenario.
(2) Holders of Letters of Authorization must fully comply with the
relevant mitigation and monitoring program for the explosive-severance
activity described in subparagraph (c) of this paragraph that
corresponds to the holder of the Letter of Authorization's blast
scenario shown in Table 1.
[[Page 89]]
Table 1. Blast Categories, Mitigation Scenarios, Survey and Time Requirements For All Explosive Severance Scenarios.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Post
Configuration Species Impact Pre Det Pre Det Pre Det Post Det Post Det Post Det Waiting
Blasting Category (Charge wt/ Delineation Mitgation Zone Surface Aerial Acoustic Surface Aerial Aerial Period
placement) Zone Scenario Radius Survey Survey Survey Survey Survey Survey (min)
(min) (min) (min) (min) (min) (Yes/No)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BML Shelf (<200 A1 261 m 60 N/A N/A 30 N/A No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
Very- (0-10 lb) Slope (200
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small AML Shelf (<200 A3 293 m 60 N/A N/A 30 N/A No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
(0-5 lb) Slope (200
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BML Shelf (<200 B1 373 m 90 30 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
Small (10- Shelf (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AML Shelf (<200 B3 522 m 90 30 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
(5- Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BML Shelf (<200 C1 631 m 90 30 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
Standard (20- Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AML Shelf (<200 C3 829 m 90 45 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
(20- Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BML Shelf (<200 D1 941 m 120 45 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
Large (80- Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AML Shelf (<200 D3 1,126 m 120 60 N/A N/A 30 No 30
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
(80- Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
BML Shelf (<200 E1 1,500 m 150 90 N/A N/A 45 No 45
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
Specialty (20 Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AML Shelf (<200 E3 1,528 m 150 90 N/A N/A 45 No 45
m)
------------------------------------------------------------------------ ---------------------------------------------------------------------
(20 Slope (200 ft)
m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Severance of subsea structures that do not penetrate the sea surface will follow the mitigation scenario for above mudline (AML) detonations even if
charges are placed below mudline.
[[Page 90]]
(c) Holders of Letters of Authorization must ensure that the
following monitoring programs are conducted as appropriate for the
required monitoring scenario.
(1) Surface monitoring survey. A surface monitoring survey must be
conducted for the length of time that corresponds to the relevant
explosive severance scenario. Surface monitoring surveys are to be
conducted from the highest vantage point and/or other location(s) that
provide the best, clear view of the entire impact zone. These vantage
points may be on the structure being removed or proximal surface vessels
(i.e., crewboats, derrick barges, etc.). Surface surveys are restricted
to daylight hours only, and the monitoring will cease if the designated
lead observer determines that weather or marine conditions are not
adequate for visual observations.
(2) Aerial monitoring survey. Aerial surveys are required for all
explosive severance scenarios except monitoring scenarios A1-A4. Aerial
monitoring surveys are to be conducted from helicopters running standard
low-altitude search patterns over the extent of the impact zone that
corresponds to the appropriate explosive severance scenario. Aerial
surveys will be restricted to daylight hours only (defined as ``legal
sunrise'' to ``legal sunset''), and cannot begin until the requisite
surface monitoring survey has been completed. Aerial surveys will cease
if the designated lead observer determines that weather or marine
conditions are not adequate for visual observations, or when the pilot/
removal supervisor determines that helicopter operations must be
suspended.
(3) Acoustic monitoring survey.
(i) Acoustic monitoring surveys are required to be conducted on all
Standard, Large, and Specialty blasting scenarios conducted at slope
(200 m (656 ft)) locations (i.e., scenarios C2, C4, D2, D4,
E2, and E4).
(ii) Persons conducting acoustic surveys will be required to comply
with NMFS-approved passive acoustic monitoring protocols and use
approved devices and technicians.
(iii) Acoustic surveys will be run concurrent with requisite pre-
detonation surveys, beginning with the surface observations and
concluding at the finish of the aerial surveys when the detonation(s) is
allowed to proceed.
(4) Post-detonation surface monitoring survey. A 30-minute post-
detonation surface survey must be conducted by the trained company
observer for scenarios A1 - A4 immediately upon conclusion of the
detonation.
(5) Post-detonation aerial monitoring survey. For scenarios B1-D4, a
30-minute aerial survey must be conducted immediately upon conclusion of
the detonation. For scenarios E1-E4, a 45-minute aerial survey must be
conducted immediately upon conclusion of the detonation.
(6) Post-post-detonation aerial monitoring survey. Post-post-
detonation aerial monitoring surveys must be conducted for scenarios C4,
D2, D4, E2 and E4 within 2-7 days after detonation activities conclude,
by either helicopter or fixed-wing aircraft. Observations are to start
at the removal site and proceed leeward and outward of wind and current
movement. Any distressed, shocked, injured or dead marine mammals will
be noted in the survey report, and if possible, tracked and collected
after notifying the National Marine Fisheries Service within the time
requirements stated in Sec. 216.217(f).
(7) If unforeseen conditions or events occur during an explosive
severance operation that may necessitate additional monitoring not
specified in this paragraph, the designated NMFS lead observer will
contact the appropriate National Marine Fisheries Service and Minerals
Management Service personnel as detailed in the Letter of Authorization
for additional guidance.
(d) Holders of Letters of Authorization must conduct all monitoring
and research required under the Letter of Authorization. Any monitoring
or research measures proposed to be contained in a Letter of
Authorization that are not specified in this subpart or not considered
an emergency requirement under Sec. 216.218(d), will first be subject
to public notice and comment through publication in the Federal
Register, as provided by Sec. 216.219(c).
(e) Reporting (1) A report summarizing the results of structure
removal
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activities, mitigation measures, monitoring efforts, and other
information as required by a Letter of Authorization, must be submitted
to the Director, Office of Protected Resources, within 30 days of
completion of the removal activity.
(2) The National Marine Fisheries Service will accept the NMFS
observer report as the activity report required by subparagraph (1) of
this paragraph if all requirements for reporting contained in the Letter
of Authorization are provided to the NMFS observer before the NMFS
observer's report is submitted to the PROP Manager.
(3) If a marine mammal is found shocked, injured, or dead, the
Holder of the Letter of Authorization, or designee, must report the
incident to the National Marine Fisheries Service Southeast Regional
Office, at the earliest opportunity.
Sec. 216.218 Letters of Authorization.
(a) To incidentally take marine mammal species listed in Sec.
216.211(b) pursuant to these regulations, each company or contractor
responsible for the removal of the structure or an industry-related
seafloor obstruction in the area specified in Sec. 216.211(a) must
apply for and obtain either a Letter of Authorization in accordance with
Sec. 216.106 or a renewal under Sec. 216.219(a).
(b) An application for a Letter of Authorization must be submitted
to the National Marine Fisheries Service at least 30 days before the
explosive removal activity is scheduled to begin.
(c) Issuance of a Letter of Authorization and renewal of a Letter of
Authorization under Sec. 216.219(a) will be based on a determination by
the National Marine Fisheries Service that the number of each species or
stock of cetaceans taken annually by the activity will be small and that
the total taking over the 5-year period will have a negligible impact on
the species or stock of affected marine mammal(s).
(d) A Letter of Authorization may be renewed annually, subject to
conditions in Sec. 216.219(a).
(e) A Letter of Authorization for activities in this subpart will
not be valid after the effective period of this subpart.
(f) A copy of the Letter of Authorization must be in the possession
of the persons conducting the activity specified in Sec. 216.211(a)
that may involve incidental takings of marine mammals.
(g) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.219 Renewal and modifications of Letters of Authorization.
(a) A Letter of Authorization issued for the activity identified in
Sec. 216.211(a) will be renewed annually upon:
(1) Receipt of an application for renewal of a Letter of
Authorization under Sec. 216.218.
(2) Timely receipt of the report(s) required under Sec. 216.217(f),
which have been reviewed by the Assistant Administrator and determined
to be acceptable; and
(3) A determination that the required mitigation, monitoring and
reporting measures have been undertaken.
(b) Notice of issuance of a renewal of the Letter of Authorization
will be published in the Federal Register within 30 days of issuance.
(c) In addition to complying with the provisions of Sec. 216.106,
except as provided in paragraph (d) of this section, no substantive
modification, including a request for a variance in the mitigation or
monitoring requirements in this subpart or a withdrawal or suspension of
the Letter of Authorization issued pursuant to Sec. 216.106 and subject
to the provisions of this subpart, shall be made until after notice and
an opportunity for public comment. For purposes of this paragraph,
renewal of a Letter of Authorization under Sec. 216.219, without
modification other than an effective date change, is not considered a
substantive modification.
(d) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.211(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.118, or
renewed pursuant to this paragraph may be modified without prior notice
and opportunity for public comment. A notice will be published in the
Federal Register subsequent to the action.
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Subpart T [Reserved]
Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from
the Kodiak Launch Complex, Kodiak Island, AK
Source: 71 FR 4308, Jan. 26, 2006, unless otherwise noted.
Effective Date Note: At 71 FR 4308, Jan. 26, 2006, subpart U,
consisting of Sec. Sec. 216.230 through 216.237 were added, effective
Feb. 27, 2006 through Feb. 28, 2011.
Sec. 216.230 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of marine mammals specified in paragraph (b) of this section by U.S.
citizens engaged in rocket launch activities (up to nine launches per
year) at the Kodiak Launch Complex on Kodiak Island, Alaska.
(b) The incidental take of marine mammals under the activity
identified in paragraph (a) of this section is limited to Steller sea
lions (Eumetopius jubatus) and Pacific harbor seals (Phoca vitulina
richardsi).
Sec. 216.231 Effective dates.
Regulations in this subpart are effective from February 27, 2006
through February 28, 2011.
Sec. 216.232 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Sec.
216.106, the Alaska Aerospace Development Corporation and its
contractors, may incidentally, but not intentionally, take Steller sea
lions by Level B harassment, take adult Pacific harbor seals by Level B
harassment, and take harbor seal pups by Level B or Level A harassment
or mortality, in the course of conducting missile launch activities
within the area described in Sec. 216.230(a), provided all terms,
conditions, and requirements of these regulations and such Letter of
Authorization are complied with.
(b) The activities identified in Sec. 216.230(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammals and their habitat.
Sec. 216.233 Prohibitions.
The following activities are prohibited:
(a) The taking of a marine mammal that is other than unintentional.
(b) The violation of, or failure to comply with, the terms,
conditions, and requirements of this subpart or a Letter of
Authorization issued under Sec. 216.106.
(c) The incidental taking of any marine mammal of a species not
specified, or in a manner not authorized, in this subpart.
Sec. 216.234 Mitigation, monitoring and reporting.
(a) No more than five launches may occur between May 15 and June 30
within the 5-year period, and no more than 15 launches may occur between
June 15 and September 30 within the 5-year period.
(b) The holder of the Letter of Authorization must implement the
following measures for all launches occurring from June through October:
(1) Conduct five replicate fixed-wing aerial surveys of all hauled
out Steller sea lions and harbor seals at Ugak Island, each flown at low
tide (weather permitting), using a minimum flight altitude of 500 feet
(152 meters) above sea level, with an approach no closer than 0.25 mi
(0.40 km) to the haulout, and conducted a day prior to, directly
following, and for three consecutive days after a launch.
(2) At least one biologist observer will accompany the pilot during
all aerial surveys.
(3) Data gathered during aerial surveys will be gathered visually
and through the use of a camera with a zoom lens.
(4) A real-time video record of Steller sea lion reactions to launch
noise will be made using a video camera system placed upon the Ugak
Island haulout before a scheduled launch and then retrieved after the
launch.
(5) Sound intensities and frequencies of rocket motor noise will be
recorded before, during, and after a launch by a sound level monitor
mounted upon the
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Ugak Island haulout and set to highlight sounds greater than 70 dBA.
Monitors will be installed one day or more before a launch and retrieved
within one day post-launch.
(c) A trial effort to obtain real-time video records of harbor seals
hauled out at the eastern end of the northern side of the island and
their reactions to launch noise will be made as soon as practicable. A
brief report summarizing the efficacy of this monitoring effort should
be included in the standard monitoring reports for that launch and year.
If valuable data may be gathered using this method, real-time video
records of harbor seals reactions to launch noise will be made before
launches scheduled between May 15 and June 30, and between June 30 and
September 30 if the equipment is not being used to record Steller sea
lions, and then retrieved after the launches.
(d) Security flights immediately associated with rocket launches may
not approach closer than 0.25 mile (0.4 km) to occupied pinniped haulout
sites on Ugak Island or fly lower than 1000 ft (305 m) when the plane is
closer than 0.5 miles (0.8 km) from occupied pinniped sites on Ugak
Island unless indications of human presence or activity warrant closer
inspection of the area to assure that national security interests are
protected in accordance with the law.
(e) When pinnipeds are present at haulouts during security
overflights associated with rocket launches, and when practicable, a
member of the flight crew will note and record whether pinnipeds
appeared to flush as a result of the overflight and estimate a number.
(f) The holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service and any other
Federal, state or local agency monitoring the impacts of the activity on
marine mammals. The holder must notify the NMFS Alaska Assistant
Regional Administrator for Protected Resources and to the NMFS Division
of Permits, Conservation, and Education, Office of Protected Resources
at least 2 weeks prior to commencing monitoring activities.
(g) Activities related to the monitoring described in paragraph (a)
of this section or in the Letter of Authorization may be conducted
without a separate scientific research permit.
(h) In coordination and compliance with the Alaska Aerospace
Development Corporation, the National Marine Fisheries Service may place
an observer on Kodiak or Ugak Islands for any marine mammal monitoring
activity prior to, during, or after a missile launch to monitor impacts
on marine mammals, provided observers are not within the calculated
danger zone of the rocket's flight path during a launch.
(i) The holder of the Letter of Authorization must comply with any
other applicable state or federal permits, regulations, and
environmental monitoring agreements set up with other agencies.
(j) The National Marine Fisheries Service must be informed
immediately of any proposed changes or deletions to any portions of the
monitoring requirements.
(k) The holder of the Letter of Authorization must implement the
following reporting requirements:
(1) If indications of injurious or lethal take are recorded, the
NMFS Alaska Assistant Regional Administrator for Protected Resources and
the NMFS Division of Permits, Conservation, and Education, Office of
Protected Resources, or their designees, will be contacted within 48
hours. In consultation with the National Marine Fisheries Service,
launch procedure, mitigation measures, and monitoring methods must be
reviewed and appropriate changes made prior to the next launch.
(2) Data from monitoring activities will be reported to the National
Marine Fisheries Service within 90 days following cessation of field
activities for each launch. After the trial effort to videotape harbor
seals at the eastern end of the north side of Ugak island, a summary of
the effectiveness of the videotaping will be included in the associated
launch report.
(3) An interim technical report must be submitted to the NMFS Alaska
Assistant Regional Administrator for Protected Resources and to the NMFS
Division of Permits, Conservation, and
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Education, Office of Protected Resources at least 60 days prior to the
expiration of each annual Letter of Authorization. This report must
contain the following information:
(i) Timing and nature of launch operations and monitoring flights;
(ii) A summary of marine mammal behavioral observations in relation
to recorded acoustic stimuli and other known visual or audio stimuli;
(iii) An estimate of the amount and nature of all takes.
(iv) A copy of all videotapes containing sea lion and harbor seal
footage, and selected illustrative 35 mm or digital pictures, cross-
referenced to the appropriate launches and acoustic measurements.
(4) A draft comprehensive technical report will be submitted to the
NMFS Alaska Assistant Regional Administrator for Protected Resources and
to the NMFS Division of Permits, Conservation, and Education, Office of
Protected Resources, 180 days prior to the expiration of these
regulations with full documentation of the methods, results, and
interpretation of all monitoring tasks for launches during all expired
Letters of Authorization, plus preliminary information for launches
during the first 6 months of the final Letter of Authorization.
(5) A revised final comprehensive technical report, including all
monitoring results during the entire period of the Letter of
Authorization, will be due 90 days after the end of the period of
effectiveness of these regulations.
(6) The interim and draft comprehensive technical reports will be
subject to review and comment by the National Marine Fisheries Service.
Any recommendations made by the National Marine Fisheries Service must
be addressed in the final comprehensive technical report prior to
acceptance by the National Marine Fisheries Service.
Sec. 216.235 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization, but
a Letter of Authorization may not be valid beyond the effective period
of the regulations.
(b) A Letter of Authorization will set forth:
(1) Species of marine mammals authorized to be taken;
(2) Permissible methods of incidental taking;
(3) Specified geographical region;
(4) Means of effecting the least practicable adverse impact on the
species of marine mammals authorized for taking and its habitat; and
(5) Requirements for monitoring and reporting incidental takes.
(c) Issuance of a Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
will be small, and that the total taking by the activity as a whole will
have no more than a negligible impact on the affected species or stocks
of marine mammal(s).
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.236 Renewal of a Letter of Authorization.
(a) A Letter of Authorization for the activity identified in Sec.
216.230(a) will be renewed upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application for a Letter of Authorization
submitted under Sec. 216.235 will be undertaken and that there will not
be a substantial modification to the described activity, mitigation or
monitoring undertaken during the upcoming season;
(2) Timely receipt of and acceptance by the National Marine
Fisheries Service of the monitoring reports required under Sec.
216.234;
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under
Sec. Sec. 216.232 and 216.234 and the Letter of Authorization were
undertaken and will be undertaken during the upcoming period of validity
of a renewed Letter of Authorization; and
(4) A determination that the number of marine mammals taken by the
activity will be small and that the total taking by the activity will
have no more than a negligible impact on the affected species or stocks
of marine mammal(s), and that the level of taking will be consistent
with the findings
[[Page 95]]
made for the total taking allowable under these regulations.
(b) A notice of issuance or denial of a renewal of a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 216.237 Modifications to a Letter of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to a
Letter of Authorization issued pursuant to the provisions of this
subpart shall be made by the National Marine Fisheries Service until
after notification and an opportunity for public comment has been
provided. A renewal of a Letter of Authorization under Sec. 216.236
without modification is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.230(b), a Letter of
Authorization may be substantively modified without prior notification
and an opportunity for public comment. Notification will be published in
the Federal Register within 30 days of the action.
Subpart V [Reserved]
Subpart W_Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon Missions in the Gulf of Mexico
Source: 71 FR 67822, Nov. 24, 2006, unless otherwise noted.
Effective Date Note: At 71 FR 67822, Nov. 24, 2006, subpart W,
consisting of Sec. Sec. 216.250 through 216.259 were added, effective
Dec. 26, 2006 through Dec. 27, 2011.
Sec. 216.250 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammal species specified in paragraph (b) of this
section by U.S. citizens engaged in U.S. Air Force Precision Strike
Weapon missions within the Eglin Air Force Base Gulf Test and Training
Range within the northern Gulf of Mexico. The authorized activities as
specified in a Letter of Authorization issued under Sec. Sec. 216.106
and 216.257 include, but are not limited to, activities associated with
(1) the Joint Air-to-Surface Stand-off Missile (JASSM) exercise for a
maximum of two live shots (single) and 4 inert shots (single) annually
and (2) the small-diameter bomb (SDB) exercise for a maximum of six live
shots a year, with two of the shots occurring simultaneously and a
maximum of 12 inert shots, with up to two occurring simultaneously.
(b) The incidental take by Level A harassment, Level B harassment,
or mortality of marine mammals under the activity identified in this
section is limited to the following species: Atlantic bottlenose
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale
(Kogia breviceps).
Sec. 216.251 Effective dates.
Regulations in this subpart are effective from December 26, 2006
until December 27, 2011.
Sec. 216.252 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 216.257, the Holder of the Letter of Authorization may
incidentally, but not intentionally, take marine mammals by Level A and
Level B harassment, including lethal take within the area described in
Sec. 216.250(a), provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The taking of marine mammals under a Letter of Authorization is
limited to the species listed in Sec. 216.250(b) and is limited to a
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by
Level B harassment annually.
Sec. 216.253 Prohibitions.
Notwithstanding takings contemplated in Sec. 216.250 and authorized
by a Letter of Authorization issued under Sec. Sec. 216.106 and
216.257, no person in connection with the activities described in Sec.
216.250 shall:
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(a) Take any marine mammal not specified in Sec. 216.250(b);
(b) Take any marine mammal specified in Sec. 216.250(b) other than
by incidental, unintentional Level A or Level B harassment or mortality;
(c) Take a marine mammal specified in Sec. 216.250(b) if such
taking results in more than a negligible impact on the species or stocks
of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of these regulations or a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.257.
Sec. 216.254 Mitigation.
The activity identified in Sec. 216.250(a) must be conducted in a
manner that minimizes, to the greatest extent practicable, adverse
impacts on marine mammal species and stocks and their habitats. When
conducting operations identified in Sec. 216.250(a) under a Letter of
Authorization, the following mitigation measures must be implemented:
(a)(1) For the JASSM, the holder of the Letter of Authorization must
establish and monitor a safety zone for marine mammals with a radius of
2.0 nm (3.7 km) from the center of the detonation and a buffer zone with
a radius of 1.0 nm (1.85 km) radius from the outer edge of the safety
zone.
(2) For the SDB, the holder of the Letter of Authorization must
establish and monitor a safety for marine mammals with a radius of no
less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double
bombs and a buffer zone from the outer edge of the safety zone with a
radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km)
for double bombs.
(b) Prior to a JASSM or SDB launch:
(1) If any marine mammals are observed within the designated safety
zone prescribed in condition (a)(1) above, or within the buffer zone
prescribed in condition (a)(2) above and it/they are on a course that
will put them within the safety zone prior to an JASSM or SDB launch,
the launch must be delayed until all marine mammals are no longer within
the designated safety zone.
(2) If any marine mammals are detected in the buffer zone and
subsequently cannot be reacquired, the mission launch will not continue
until the next verified location is outside of the safety zone and the
animal is moving away from the mission area.
(3) If weather and/or sea conditions preclude adequate aerial
surveillance for detecting marine mammals, detonation must be delayed
until adequate sea conditions exist for aerial surveillance to be
undertaken. Adequate sea conditions means the sea state does not exceed
Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface;
0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or
greater, and the ceiling is 305 m (1,000 ft) or greater.
(4) To ensure adequate daylight for pre- and post-detonation
monitoring, mission launches may not take place earlier than 2 hours
after sunrise, and detonations may not take place later than 2 hours
prior to sunset, or whenever darkness or weather conditions will
preclude completion of the post-test survey effort described in Sec.
216.255.
(5) If post-detonation surveys determine that a serious injury or
lethal take of a marine mammal has occurred, the test procedure and the
monitoring methods must be reviewed with the National Marine Fisheries
Service and appropriate changes must be made prior to conducting the
next mission detonation.
(6) Mission launches must be delayed if aerial or vessel monitoring
programs described under Sec. 216.255 cannot be carried out fully.
Sec. 216.255 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 216.257 for activities described in Sec.
216.250(a) is required to conduct the monitoring and reporting measures
specified in this section and any additional monitoring measures
contained in the Letter of Authorization.
(b) The Holder of the Letter of Authorization is required to
cooperate with the National Marine Fisheries Service, and any other
Federal, state or local agency authorized to monitor the impacts of the
activity on marine mammals. Unless specified otherwise in the Letter of
Authorization, the
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Holder of the Letter of Authorization must notify the Director, Office
of Protected Resources, National Marine Fisheries Service, or designee,
by letter or telephone (301-713-2289), at least 2 weeks prior to any
modification to the activity identified in Sec. 216.250(a) that has the
potential to result in the mortality or Level A or Level B harassment of
marine mammals that was not identified and addressed previously.
(c) The Holder of this Authorization must:
(1) Designate qualified on-site marine mammal observers to record
the effects of mission launches on marine mammals that inhabit the
northern Gulf of Mexico;
(2) Have on-site marine mammal observers approved in advance by the
National Marine Fisheries Service to conduct the mitigation, monitoring
and reporting activities specified in these regulations and in the
Letter of Authorization issued pursuant to Sec. 216.106 and Sec.
216.257.
(3) Conduct aerial surveys to reduce impacts on protected species.
The aerial survey/monitoring team will consist of two experienced marine
mammal observers, approved in advance by the Southeast Region, National
Marine Fisheries Service. The aircraft will also have a data recorder
who would be responsible for relaying the location, the species if
possible, the direction of movement, and the number of animals sighted.
(4) Conduct shipboard monitoring to reduce impacts to protected
species. Trained marine mammal observers will conduct monitoring from
the highest point possible on each mission or support vessel(s). The
observer on the vessel must be equipped with optical equipment with
sufficient magnification (e.g., 25X power ``Big-Eye'' binoculars. The
marine mammal observation platform must be of sufficient height to
provide observers a platform to see a major portion of the safety zone.
(d) The aerial and shipboard monitoring teams will maintain proper
lines of communication to avoid communication deficiencies. The
observers from the aerial team and operations vessel will have direct
communication with the lead scientist aboard the operations vessel.
(e) Pre-mission Monitoring: Approximately 5 hours prior to the
mission, or at daybreak, the appropriate vessel(s) would be on-site in
the primary test site near the location of the earliest planned mission
point. Observers onboard the vessel will assess the suitability of the
test site, based on visual observation of marine mammals and overall
environmental conditions (visibility, sea state, etc.). This information
will be relayed to the lead scientist.
(f) Three Hours Prior to Mission:
(1) Approximately three hours prior to the mission launch, aerial
monitoring will commence within the test site to evaluate the test site
for environmental suitability. Evaluation of the entire test site would
take approximately 1 to 1.5 hours. The aerial monitoring team will begin
monitoring the safety zone and buffer zone around the target area.
(2) Shipboard observers will monitor the safety and buffer zone, and
the lead scientist will enter all marine mammal sightings, including the
time of sighting and the direction of travel, into a marine animal
tracking and sighting database.
(g) One to 1.5 Hours Prior to Mission Launch:
(1) Depending upon the mission, aerial and shipboard viewers will be
instructed to leave the area and remain outside the safety area. The
aerial team will report all marine animals spotted and their directions
of travel to the lead scientist onboard the vessel.
(2) The shipboard monitoring team will continue searching the buffer
zone for protected species as it leaves the safety zone. The surface
vessels will continue to monitor from outside of the safety area until
after impact.
(h) Post-mission monitoring:
(1) The vessels will move into the safety zone from outside the
safety zone and continue monitoring for at least two hours,
concentrating on the area down current of the test site.
(2) The Holder of the Letter of Authorization will closely
coordinate mission launches with marine animal
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stranding networks. Coordination shall include:
(i) Pre-activity notification of a PSW exercise; and
(ii) Post-event surveying of the Eglin AFB shore-line in the
vicinity of the PSW exercise.
(3) The monitoring team will document any dead or injured marine
mammals and, if practicable, recover and examine any dead animals.
(i) Activities related to the monitoring described in this section
may include retention of marine mammals without the need for a separate
scientific research permit.
(j) The Holder of the Letter of Authorization must conduct any
marine mammal research required under the Letter of Authorization.
(k) Reporting. (1) Unless specified otherwise in the Letter of
Authorization, the Holder of the Letter of Authorization must submit an
annual report to the Director, Office of Protected Resources, National
Marine Fisheries Service, no later than 30 days prior to the date of
expiration of the Letter of Authorization. This report must contain all
information required by these regulations and the Letter of
Authorization.
(2) The final comprehensive report on all marine mammal monitoring
and research conducted during the period of these regulations must be
submitted to the Director, Office of Protected Resources, National
Marine Fisheries Service at least 240 days prior to expiration of these
regulations or 240 days after the expiration of these regulations if new
regulations will not be requested.
Sec. 216.256 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to these regulations,
the U.S. citizen (as defined at Sec. 216.103 ) conducting the activity
identified in Sec. 216.250(a) must apply for and obtain either an
initial Letter of Authorization in accordance with Sec. Sec. 216.106
and 216.257 or a renewal under Sec. 216.258.
Sec. 216.257 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization, but
may not to exceed the period of validity of this subpart, and must be
renewed annually subject to annual renewal conditions in Sec. 216.258.
(b) A Letter of Authorization with a period of validity less than
the period of this subpart may be renewed subject to renewal conditions
in Sec. 216.258.
(c) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting incidental takes.
(d) Issuance and renewal of the Letter of Authorization will be
based on a determination that the total number of marine mammals taken
by the activity as a whole will have no more than a negligible impact on
the species or stock of affected marine mammals.
(e) Except for the initial Letter of Authorization, notice of
issuance or denial of subsequent Letters of Authorization will be
published in the Federal Register within 30 days of a determination.
Sec. 216.258 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
216.257 for the activity identified in Sec. 216.250(a) will be renewed
annually upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application submitted under Sec. 216.256 will
be undertaken and that there will not be a substantial modification to
the described work, mitigation or monitoring undertaken during the
upcoming 12 months;
(2) Timely receipt of the monitoring report required under Sec.
216.255(k), and the Letter of Authorization, which has been reviewed and
accepted by the National Marine Fisheries Service; and
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under Sec.
216.254, Sec. 216.255, and the Letter of Authorization issued under
Sec. Sec. 216.106 and 216.257, were undertaken and will be undertaken
during
[[Page 99]]
the upcoming annual period of validity of a renewed Letter of
Authorization.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. Sec. 216.106 and 216.258 indicates that a substantial
modification to the described work, mitigation, monitoring or research
undertaken during the upcoming season will occur, the National Marine
Fisheries Service will provide the public a period of 30 days for review
and seek comment on:
(1) New cited information and data that indicates that the
determinations made for promulgating these regulations are in need of
reconsideration, and
(2) Proposed changes to the mitigation, monitoring and research
requirements contained in these regulations or in the current Letter of
Authorization.
Sec. 216.259 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to a
Letter of Authorization issued pursuant to Sec. Sec. 216.106 shall be
made until after notification and an opportunity for public comment has
been provided. For purposes of this paragraph, a renewal of a Letter of
Authorization under Sec. 216.258, without modification (except for the
period of validity), is not considered a substantive modification.
(b) If the Assistant Administrator determines that an emergency
exists that poses a significant risk to the well-being of the species or
stocks of marine mammals specified in Sec. 216.250(b), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 216.257 may be
substantively modified without prior notification and an opportunity for
public comment. Notification will be published in the Federal Register
within 30 days subsequent to the action.
PARTS 217 220 [RESERVED]
PART 221_PRESCRIPTIONS IN FERC HYDROPOWER LICENSES--Table of Contents
Subpart A_General Provisions
Sec.
221.1 What is the purpose of this part, and to what license proceedings
does it apply?
221.2 What terms are used in this part?
221.3 How are time periods computed?
221.4 What deadlines apply to pending applications?
Subpart B_Hearing Process
Representatives
221.10 Who may represent a party, and what requirements apply to a
representative?
Document Filing and Service
221.11 What are the form and content requirements for documents under
this subpart?
221.12 Where and how must documents be filed?
221.13 What are the requirements for service of documents?
Initiation of Hearing Process
221.20 What supporting information must NMFS provide with its
preliminary prescriptions?
221.21 How do I request a hearing?
221.22 How do I file a notice of intervention and response?
221.23 When will hearing requests be consolidated?
221.24 How will NMFS respond to any hearing requests?
221.25 What will NMFS do with any hearing requests?
221.26 What regulations apply to a case referred for a hearing?
General Provisions Related to Hearings
221.30 What will the Department of Commerce's designated ALJ office do
with a case referral?
221.31 What are the powers of the ALJ?
221.32 What happens if the ALJ becomes unavailable?
221.33 Under what circumstances may the ALJ be disqualified?
221.34 What is the law governing ex parte communications?
221.35 What are the requirements for motions?
Prehearing Conferences and Discovery
221.40 What are the requirements for prehearing conferences?
221.41 How may parties obtain discovery of information needed for the
case?
[[Page 100]]
221.42 When must a party supplement or amend information it has
previously provided?
221.43 What are the requirements for written interrogatories?
221.44 What are the requirements for depositions?
221.45 What are the requirements for requests for documents or tangible
things or entry on land?
221.46 What sanctions may the ALJ impose for failure to comply with
discovery?
221.47 What are the requirements for subpoenas and witness fees?
Hearing, Briefing, and Decision
221.50 When and where will the hearing be held?
221.51 What are the parties' rights during the hearing?
221.52 What are the requirements for presenting testimony?
221.53 How may a party use a deposition in the hearing?
221.54 What are the requirements for exhibits, official notice, and
stipulations?
221.55 What evidence is admissible at the hearing?
221.56 What are the requirements for transcription of the hearing?
221.57 What is the standard of proof?
221.58 When will the hearing record close?
221.59 What are the requirements for post-hearing briefs?
221.60 What are the requirements for the ALJ's decision?
Subpart C_Alternatives Process
221.70 How must documents be filed and served under this subpart?
221.71 How do I propose an alternative?
221.72 What will NMFS do with a proposed alternative?
221.73 How will NMFS analyze a proposed alternative and formulate its
modified prescription?
221.74 Has OMB approved the information collection provisions of this
subpart?
Authority: 16 U.S.C. 797(e), 811, 823d.
Source: 70 FR 69840, Nov. 17, 2005, unless otherwise noted.
Subpart A_General Provisions
Sec. 221.1 What is the purpose of this part, and to what license
proceedings does it apply?
(a) Hearing process. (1) The regulations in subparts A and B of this
part contain rules of practice and procedure applicable to hearings on
disputed issues of material fact with respect to mandatory prescriptions
that the Department of Commerce, acting through the National Oceanic and
Atmospheric Administration's National Marine Fisheries Service (NMFS)
may develop for inclusion in a hydropower license issued by the Federal
Energy Regulatory Commission (FERC) under subchapter I of the Federal
Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop these
prescriptions is granted by FPA section 18, 16 U.S.C. 811, which
authorizes the Secretary of Commerce to prescribe fishways.
(2) The hearing process under this part does not apply to
recommendations that the Department of Commerce may submit to FERC under
FPA section 10(a) or (j), 16 U.S.C. 803(a), (j).
(3) The FPA also grants the Department of Agriculture and Interior
the authority to develop mandatory conditions, and the Department of the
Interior the authority to develop mandatory prescriptions, for inclusion
in a hydropower license. Where the Department of Commerce and either or
both of these other Departments develop conditions or prescriptions to
be included in the same hydropower license and where the Departments
agree to consolidate the hearings under Sec. 221.23:
(i) A hearing conducted under this part will also address disputed
issues of material fact with respect to any condition or prescription
developed by one of the other Departments; or
(ii) A hearing requested under this part will be conducted by one of
the other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 45.1 et
seq., as applicable.
(4) The regulations in subparts A and B of this part will be
construed and applied to each hearing process to achieve a just and
speedy determination, consistent with adequate consideration of the
issues involved and the provisions of Sec. 221.60(a).
(b) Alternatives process. The regulations in subparts A and C of
this part contain rules of procedure applicable to the submission and
consideration of alternative prescriptions under FPA section 33, 16
U.S.C. 823d. That section allows any party to the license proceeding to
propose an alternative to a fishway prescribed by NMFS under section 18.
[[Page 101]]
(c) Reservation of authority. Where NMFS notifies FERC that it is
reserving its authority to develop one or more prescriptions during the
term of the license, the hearing and alternatives processes under this
part for such prescriptions will be available if and when NMFS exercises
its reserved authority. NMFS will consult with FERC and notify the
license parties regarding how to initiate the hearing process and
alternatives process at that time.
(d) Applicability. (1) This part applies to any hydropower license
proceeding for which the license has not been issued as of November 17,
2005 and for which one or more preliminary prescriptions or
prescriptions have been or are filed with FERC.
(2) If NMFS has already filed one or more preliminary prescriptions
or prescriptions as of November 17, 2005, the special applicability
provisions of Sec. 221.4 also apply.
Sec. 221.2 What terms are used in this part?
As used in this part:
ALJ means an administrative law judge appointed under 5 U.S.C. 3105
and assigned to preside over the hearing process under subpart B of this
part.
Alternative means a prescription that a license party other than
NMFS or another Department develops as an alternative to a preliminary
prescription from NMFS or another Department, under FPA sec. 33, 16
U.S.C. 823d.
Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e),
for the adequate protection and utilization of a reservation.
Day means a calendar day.
Department means the Department of Agriculture, Department of
Commerce, or Department of the Interior.
Department of Commerce's designated ALJ office means the ALJ office
that is assigned to preside over the hearings process for NMFS.
Discovery means a prehearing process for obtaining facts or
information to assist a party in preparing or presenting its case.
Ex parte communication means an oral or written communication to the
ALJ that is made without providing all parties reasonable notice and an
opportunity to participate.
FERC means the Federal Energy Regulatory Commission.
FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
Intervention means a process by which a person who did not request a
hearing under Sec. 221.21 can participate as a party to the hearing
under Sec. 221.22.
License party means a party to the license proceeding, as that term
is defined at 18 CFR 385.102(c).
License proceeding means a proceeding before FERC for issuance of a
license for a hydroelectric facility under 18 CFR parts 4 or 5.
Material fact means a fact that, if proved, may affect a
Department's decision whether to affirm, modify, or withdraw any
condition or prescription.
NEPA document means an environmental assessment or environmental
impact statement issued to comply with the requirements of the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
NMFS means the National Marine Fisheries Service, a constituent
agency of the Department of Commerce, acting by and through the
Assistant Administrator for Fisheries or one of NMFS's six Regional
Administrators, as appropriate.
Office of Habitat Conservation means the NMFS Office of Habitat
Conservation. Address: Chief, Habitat Protection Division, Office of
Habitat Conservation, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910. Telephone 301-713-4300. Facsimile
number 301-713-4305.
Party means, with respect to NMFS's hearing process under subpart B
of this part:
(1) A license party that has filed a timely request for a hearing
under:
(i) Section 221.21; or
(ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing
process consolidated under Sec. 221.23;
(2) A license party that has filed a timely notice of intervention
and response under:
(i) Section 221.22; or
(ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing
process consolidated under Sec. 221.23;
[[Page 102]]
(3) NMFS, if it has filed a preliminary prescription; and
(4) Any other Department that has filed a preliminary condition or
prescription, with respect to a hearing process consolidated under Sec.
221.23.
Person means an individual; a partnership, corporation, association,
or other legal entity; an unincorporated organization; and any federal,
state, tribal, county, district, territorial, or local government or
agency.
Preliminary condition or prescription means a preliminary condition
or prescription filed by a Department with FERC under 18 CFR 4.34(b),
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C.
811, to provide for the safe, timely, and effective passage of fish.
Representative means a person who:
(1) Is authorized by a party to represent the party in a hearing
process under this subpart; and
(2) Has filed an appearance under Sec. 221.10.
Secretary means the Secretary of Commerce or his or her designee.
Senior Department employee has the same meaning as the term ``senior
employee'' in 5 CFR 2637.211(a).
You refers to a party other than a Department.
Sec. 221.3 How are time periods computed?
(a) General. Time periods are computed as follows:
(1) The day of the act or event from which the period begins to run
is not included.
(2) The last day of the period is included.
(i) If that day is a Saturday, Sunday, or federal holiday, the
period is extended to the next business day.
(ii) The last day of the period ends at 5 p.m. at the place where
the filing or other action is due.
(3) If the period is less than 7 days, any Saturday, Sunday, or
federal holiday that falls within the period is not included.
(b) Extensions of time. (1) No extension of time can be granted to
file a request for a hearing under Sec. 221.21, a notice of
intervention and response under Sec. 221.22, an answer under Sec.
221.24, or any document under subpart C of this part.
(2) An extension of time to file any other document under subpart B
of this part may be granted only upon a showing of good cause.
(i) To request an extension of time, a party must file a motion
under Sec. 221.35 stating how much additional time is needed and the
reasons for the request.
(ii) The party must file the motion before the applicable time
period expires, unless the party demonstrates extraordinary
circumstances that justify a delay in filing.
(iii) The ALJ may grant the extension only if:
(A) It would not unduly prejudice other parties; and
(B) It would not delay the decision under Sec. 221.60.
Sec. 221.4 What deadlines apply to pending applications?
(a) Applicability. (1) This section applies to any case in which
NMFS has filed a preliminary prescription or prescription with FERC
before November 17, 2005 and FERC has not issued a license as of that
date.
(2) The deadlines in this section will apply in such a case, in lieu
of any inconsistent deadline in other sections of this part.
(b) Hearing process. (1) Any request for a hearing under Sec.
221.21 must be filed with the Office of Habitat Conservation by December
19, 2005.
(2) Any notice of intervention and response under Sec. 221.22 must
be filed by January 3, 2006.
(3) Upon receipt of a hearing request under paragraph (b)(1) of this
section, NMFS must do the following by March 17, 2006:
(i) Comply with the requirements of Sec. 221.23;
(ii) Determine jointly with any other Department that has received a
hearing request, after consultation with FERC, a time frame for the
hearing process and a corresponding deadline for NMFS to file an answer
under Sec. 221.24; and
(iii) Issue a notice to each party specifying the time frame for the
hearing process, including the deadline for NMFS to file an answer.
[[Page 103]]
(c) Alternatives process. (1) Any alternative under Sec. 221.71
must be filed with the Office of Habitat Conservation by December 19,
2005.
(2) Upon receipt of an alternative under paragraph (c)(1) of this
section, if no hearing request is filed under paragraph (b)(1) of this
section, NMFS must do the following by February 15, 2006:
(i) Determine jointly with any other Department that has received a
related alternative, after consultation with FERC, a time frame for the
filing of a modified prescription under Sec. 221.72(b); and
(ii) Issue a notice to the license party that has submitted the
alternative, specifying the time frame for the filing of a modified
prescription.
(3) Upon receipt of an alternative under paragraph (c)(1) of this
section, if a hearing request is also filed under paragraph (b)(1) of
this section, NMFS will follow the provisions of paragraph (b)(3) of
this section.
Subpart B_Hearing Process
Representatives
Sec. 221.10 Who may represent a party, and what requirements apply
to a representative?
(a) Individuals. A party who is an individual may either represent
himself or herself in the hearing process under this subpart or
authorize an attorney to represent him or her.
(b) Organizations. A party that is an organization or other entity
may authorize one of the following to represent it:
(1) An attorney;
(2) A partner, if the entity is a partnership;
(3) An officer or full-time employee, if the entity is a
corporation, association, or unincorporated organization;
(4) A receiver, administrator, executor, or similar fiduciary, if
the entity is a receivership, trust, or estate; or
(5) An elected or appointed official or an employee, if the entity
is a federal, state, tribal, county, district, territorial, or local
government or component.
(c) Appearance. A representative must file a notice of appearance.
The notice must:
(1) Meet the form and content requirements for documents under Sec.
221.11;
(2) Include the name and address of the person on whose behalf the
appearance is made;
(3) If the representative is an attorney, include a statement that
he or she is a member in good standing of the bar of the highest court
of a state, the District of Columbia, or any territory or commonwealth
of the United States (identifying which one); and
(4) If the representative is not an attorney, include a statement
explaining his or her authority to represent the entity.
(d) Disqualification. The ALJ may disqualify any representative for
misconduct or other good cause.
Document Filing and Service
Sec. 221.11 What are the form and content requirements for documents
under this subpart?
(a) Form. Each document filed in a case under this subpart must:
(1) Measure 8\1/2\ by 11 inches, except that a table, chart,
diagram, or other attachment may be larger if folded to 8\1/2\ by 11
inches and attached to the document;
(2) Be printed on just one side of the page;
(3) Be clearly typewritten, printed, or otherwise reproduced by a
process that yields legible and permanent copies;
(4) Use 10 point font size or larger;
(5) Be double-spaced except for footnotes and long quotations, which
may be single-spaced;
(6) Have margins of at least 1 inch; and
(7) Be bound on the left side, if bound.
(b) Caption. Each document filed under this subpart must begin with
a caption that sets forth:
(1) The name of the case under this subpart and the docket number,
if one has been assigned;
(2) The name and docket number of the license proceeding to which
the case under this subpart relates; and
(3) A descriptive title for the document, indicating the party for
whom it is filed and the nature of the document.
(c) Signature. The original of each document filed under this
subpart must
[[Page 104]]
be signed by the representative of the person for whom the document is
filed. The signature constitutes a certification by the representative
that he or she has read the document; that to the best of his or her
knowledge, information, and belief, the statements made in the document
are true; and that the document is not being filed for the purpose of
causing delay.
(d) Contact information. Below the representative's signature, the
document must provide the representative's name, mailing address, street
address (if different), telephone number, facsimile number (if any), and
electronic mail address (if any).
Sec. 221.12 Where and how must documents be filed?
(a) Place of filing. Any documents relating to a case under this
subpart must be filed with the appropriate office, as follows:
(1) Before NMFS refers a case for docketing under Sec. 221.25, any
documents must be filed with the Office of Habitat Conservation. The
Office of Habitat Conservation's address, telephone number, and
facsimile number are set forth in Sec. 221.2.
(2) NMFS will notify the parties of the date on which it refers a
case for docketing under Sec. 221.25. After that date, any documents
must be filed with:
(i) The Department of Commerce's designated ALJ office. The name,
address, telephone number, and facsimile number of the Department of
Commerce's designated ALJ office will be provided in the referral notice
from NMFS; or
(ii) The hearings component of or used by another Department, if
that Department will be conducting the hearing under Sec. 221.25. The
name, address, telephone number, and facsimile number of the appropriate
hearings component will be provided in the referral notice from NMFS.
(b) Method of filing. (1) A document must be filed with the
appropriate office under paragraph (a) of this section using one of the
following methods:
(i) By hand delivery of the original document;
(ii) By sending the original document by express mail or courier
service for delivery on the next business day; or
(iii) By sending the document by facsimile if:
(A) The document is 20 pages or less, including all attachments;
(B) The sending facsimile machine confirms that the transmission was
successful; and
(C) The original of the document is sent by regular mail on the same
day.
(2) Parties are encouraged, but not required to supplement any
original document by providing the appropriate office with an electronic
copy of the document on compact disc.
(c) Date of filing. A document under this subpart is considered
filed on the date it is received. However, any document received after 5
p.m. at the place where the filing is due is considered filed on the
next regular business day.
(d) Nonconforming documents. If any document submitted for filing
under this subpart does not comply with the requirements of this subpart
or any applicable order, it may be rejected. If the defect is minor, the
party may be notified of the defect and given a chance to correct it.
Sec. 221.13 What are the requirements for service of documents?
(a) Filed documents. Any document related to a case under this
subpart must be served at the same time the document is delivered or
sent for filing. Copies must be served as follows:
(1) A complete copy of any request for a hearing under Sec. 221.21
must be served on FERC and each license party, using one of the methods
of service in paragraph (c) of this section.
(2) A complete copy of any notice of intervention and response under
Sec. 221.22 must be:
(i) Served on FERC, the license applicant, any person who has filed
a request for hearing under Sec. 221.21, and NMFS, using one of the
methods of service in paragraph (c) of this section; and
(ii) Sent to any other license party using regular mail.
(3) A complete copy of any other filed document must be served on
each party, using one of the methods of service in paragraph (c) of this
section.
[[Page 105]]
(b) Documents issued by the ALJ. A complete copy of any notice,
order, decision, or other document issued by the ALJ under this subpart
must be served on each party, using one of the methods of service in
paragraph (c) of this section.
(c) Method of service. Service must be accomplished by one of the
following methods:
(1) By hand delivery of the document;
(2) By sending the document by express mail or courier service for
delivery on the next business day;
(3) By sending the document by facsimile if:
(i) The document is 20 pages or less, including all attachments;
(ii) The sending facsimile machine confirms that the transmission
was successful; and
(iii) The document is sent by regular mail on the same day; or
(4) By sending the document, including all attachments, by
electronic mail if:
(i) A copy of the document is sent by regular mail on the same day;
and
(ii) The party acknowledges receipt of the document by close of the
next business day.
(d) Acknowledgment of service. Any party who receives a document
under this subpart by electronic mail must promptly send a reply
electronic mail message acknowledging receipt.
(e) Certificate of service. A certificate of service must be
attached to each document filed under this subpart. The certificate must
be signed by the party's representative and include the following
information:
(1) The name, address, and other contact information of each party's
representative on whom the document was served;
(2) The means of service, including information indicating
compliance with paragraph (c)(3) or (c)(4) of this section, if
applicable; and
(3) The date of service.
Initiation of Hearing Process
Sec. 221.20 What supporting information must NMFS provide with its
preliminary prescriptions?
(a) Supporting information. (1) When NMFS files a preliminary
prescription with FERC, it must include a rationale for the prescription
and an index to NMFS's administrative record that identifies all
documents relied upon.
(2) If any of the documents relied upon are not already in the
license proceeding record, NMFS must:
(i) File them with FERC at the time it files the preliminary
prescription; and
(ii) Provide copies to the license applicant.
(b) Service. NMFS will serve a copy of its preliminary prescription
on each license party.
Sec. 221.21 How do I request a hearing?
(a) General. To request a hearing on disputed issues of material
fact with respect to any prescription filed by NMFS, you must:
(1) Be a license party; and
(2) File with the Office of Habitat Conservation a written request
for a hearing within 30 days after the deadline for the Departments to
file preliminary prescriptions with FERC.
(b) Content. Your hearing request must contain:
(1) A numbered list of the factual issues that you allege are in
dispute, each stated in a single, concise sentence; and
(2) The following information with respect to each issue:
(i) The specific factual statements made or relied upon by [the
bureau] under Sec. 221.20(a) that you dispute;
(ii) The basis for your opinion that those factual statements are
unfounded or erroneous;
(iii) The basis for your opinion that any factual dispute is
material; and
(iv) With respect to any scientific studies, literature, and other
documented information supporting your opinions under paragraphs
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the
information relied upon. If any such document is not already in the
license proceeding record, you must provide a copy with the request.
(c) Witnesses and exhibits. Your hearing request must also list the
witnesses and exhibits that you intend to present at the hearing, other
than solely for impeachment purposes.
(1) For each witness listed, you must provide:
[[Page 106]]
(i) His or her name, address, telephone number, and qualifications;
and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, you must specify whether it is in the
license proceeding record.
(d) Page limits. (1) For each disputed factual issue, the
information provided under paragraph (b)(2) of this section may not
exceed two pages.
(2) For each witness, the information provided under paragraph
(c)(1) of this section may not exceed one page.
Sec. 221.22 How do I file a notice of intervention and response?
(a) General. (1) To intervene as a party to the hearing process, you
must:
(i) Be a license party; and
(ii) File with the Office of Habitat Conservation a notice of
intervention and a written response to any request for a hearing within
15 days after the date of service of the request for a hearing.
(2) A license party filing a notice of intervention and response may
not raise issues of material fact beyond those raised in the hearing
request.
(b) Content. In your notice of intervention and response you must
explain your position with respect to the issues of material fact raised
in the hearing request under Sec. 221.21(b).
(1) If you agree with the information provided by NMFS under Sec.
221.20(a) or by the requester under Sec. 221.21(b), your response may
refer to NMFS's explanation or the requester's hearing request for
support.
(2) If you wish to rely on additional information or analysis, your
response must provide the same level of detail with respect to the
additional information or analysis as required under Sec. 221.21(b).
(c) Witnesses and exhibits. Your response and notice must also list
the witnesses and exhibits that you intend to present at the hearing,
other than solely for impeachment purposes.
(1) For each witness listed, you must provide:
(i) His or her name, address, telephone number, and qualifications;
and
(ii) A brief narrative summary of his or her expected testimony; and
(2) For each exhibit listed, you must specify whether it is in the
license proceeding record.
(d) Page limits. (1) For each disputed factual issue, the
information provided under paragraph (b) of this section may not exceed
two pages.
(2) For each witness, the information provided under paragraph
(c)(1) of this section may not exceed one page.
Sec. 221.23 When will hearing requests be consolidated?
(a) Initial Department coordination. If NMFS has received a copy of
a hearing request, it must contact the other Departments within 10 days
after the deadline for filing hearing requests under Sec. 221.21 and
determine:
(1) Whether any of the other Departments has also filed a
preliminary condition or prescription relating to the license with FERC;
and
(2) If so, whether the other Departments have also received a
hearing request with respect to the preliminary condition or
prescription.
(b) Decision on consolidation. Within 25 days after the deadline for
filing hearing requests under Sec. 221.21, if NMFS has received a
hearing request, NMFS must:
(1) Consult with any other Department that has also received a
hearing request; and
(2) Decide jointly with the other Department:
(i) Whether to consolidate the cases for hearing under paragraphs
(c)(3)(ii) through (c)(3)(iv) of this section; and
(ii) If so, which Department will conduct the hearing on their
behalf.
(c) Criteria. Cases will or may be consolidated as follows:
(1) All hearing requests with respect to any prescriptions from NMFS
will be consolidated for hearing.
(2) Any or all of the following may be consolidated for hearing if
NMFS determines that there are common issues of material fact or that
consolidation is otherwise appropriate:
(i) Two or more hearing requests with respect to prescriptions from
NMFS and the Department of the Interior; or
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(ii) Two or more hearing requests with respect to any condition from
another Department and any prescription from NMFS.
Sec. 221.24 How will NMFS respond to any hearing requests?
(a) General. NMFS will determine whether to file an answer to any
hearing request under Sec. 221.21.
(b) Content. If NMFS files an answer:
(1) For each of the numbered factual issues listed under Sec.
221.21(b)(1), the answer must explain NMFS's position with respect to
the issues of material fact raised by the requester, including one or
more of the following statements as appropriate:
(i) That NMFS is willing to stipulate to the facts as alleged by the
requester;
(ii) That NMFS believes the issue listed by the requester is not a
factual issue, explaining the basis for such belief;
(iii) That NMFS believes the issue listed by the requester is not
material, explaining the basis for such belief; or
(iv) That NMFS agrees that the issue is factual, material, and in
dispute.
(2) The answer must also indicate whether the hearing request will
be consolidated with one or more other hearing requests under Sec.
221.23 and, if so:
(i) Identify any other hearing request that will be consolidated
with this hearing request; and
(ii) State which Department will conduct the hearing and provide
contact information for the appropriate Department hearings component.
(c) Witnesses and exhibits. NMFS's answer must also list the
witnesses and exhibits that it intends to present at the hearing, other
than solely for impeachment purposes.
(1) For each witness listed, NMFS must provide:
(i) His or her name, address, telephone number, and qualifications;
and
(ii) A brief narrative summary of his or her expected testimony.
(2) For each exhibit listed, NMFS must specify whether it is in the
license proceeding record.
(d) Page limits. (1) For each disputed factual issue, the
information provided under paragraph (b)(1) of this section may not
exceed two pages.
(2) For each witness, the information provided under paragraph
(c)(1) of this section may not exceed one page.
(e) Notice in lieu of answer. If NMFS elects not to file an answer
to a hearing request:
(1) NMFS is deemed to agree that the issues listed by the requester
are factual, material, and in dispute;
(2) NMFS may file a list of witnesses and exhibits with respect to
the request only as provided in Sec. 221.42(b); and
(3) NMFS must file a notice containing the information required by
paragraph (b)(2) of this section, if the hearing request will be
consolidated with one or more other hearing requests under Sec. 221.23.
Sec. 221.25 What will NMFS do with any hearing requests?
(a) Case referral. Within 50 days after the deadline in Sec.
221.21(a), NMFS will refer the case for a hearing as follows:
(1) If the hearing is to be conducted by NMFS, NMFS will refer the
case to the Department of Commerce's designated ALJ office.
(2) If the hearing is to be conducted by another Department, NMFS
will refer the case to the hearings component used by that Department.
(b) Content. The case referral will consist of the following:
(1) A copy of any preliminary prescription under Sec. 221.20;
(2) The original of any hearing request under Sec. 221.21;
(3) The original of any notice of intervention and response under
Sec. 221.22;
(4) The original of any answer under Sec. 221.24; and
(5) An original referral notice under paragraph (c) of this section.
(c) Notice. At the time NMFS refers the case for a hearing, it must
provide a referral notice that contains the following information:
(1) The name, address, telephone number, and facsimile number of the
Department hearings component that will conduct the hearing;
(2) The name, address, and other contact information for the
representative of each party to the hearing process;
(3) An identification of any other hearing request that will be
consolidated with this hearing request; and
[[Page 108]]
(4) The date on which NMFS is referring the case for docketing.
(d) Delivery and service. (1) NMFS must refer the case to the
appropriate Department hearings component by one of the methods
identified in Sec. 221.12(b)(1)(i) through (b)(1)(ii).
(2) NMFS must serve a copy of the referral notice on FERC and each
party to the hearing by one of the methods identified in Sec.
221.13(c)(1) and (c)(2).
Sec. 221.26 What regulations apply to a case referred for a hearing?
(a) If NMFS refers the case to the Department of Commerce's
designated ALJ office, the regulations in this subpart will continue to
apply to the hearing process.
(b) If NMFS refers the case to the United States Department of
Agriculture's Office of Administrative Law Judges, the regulations at 7
CFR 1.601 et seq. will apply from that point on.
(c) If NMFS refers the case to the Department of the Interior's
Office of Hearings and Appeals, the regulations at 43 CFR 45.1 et seq.
will apply from that point on.
General Provisions Related to Hearings
Sec. 221.30 What will the Department of Commerce's designated ALJ
office do with a case referral?
Within 5 days after issuance of the referral notice under Sec.
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c):
(a) The Department of Commerce's designated ALJ office must:
(1) Docket the case;
(2) Assign an ALJ to preside over the hearing process and issue a
decision; and
(3) Issue a docketing notice that informs the parties of the docket
number and the ALJ assigned to the case; and
(b) The ALJ must issue a notice setting the time, place, and method
for conducting an initial prehearing conference under Sec. 221.40. This
notice may be combined with the docketing notice under paragraph (a)(3)
of this section.
Sec. 221.31 What are the powers of the ALJ?
The ALJ will have all powers necessary to conduct a fair, orderly,
expeditious, and impartial hearing process, consistent with the
requirements of Sec. 221.60(a), including the powers to:
(a) Administer oaths and affirmations;
(b) Issue subpoenas to the extent authorized by law;
(c) Rule on motions;
(d) Authorize discovery as provided for in this subpart;
(e) Hold hearings and conferences;
(f) Regulate the course of hearings;
(g) Call and question witnesses;
(h) Exclude any person from a hearing or conference for misconduct
or other good cause;
(i) Issue a decision consistent with Sec. 221.60(b) regarding any
disputed issues of material fact relating to any Department's condition
or prescription that has been referred to the ALJ for hearing; and
(j) Take any other action authorized by law.
Sec. 221.32 What happens if the ALJ becomes unavailable?
(a) If the ALJ becomes unavailable or otherwise unable to perform
the duties described in Sec. 221.31, the Department of Commerce's
designated ALJ office shall designate a successor.
(b) If a hearing has commenced and the ALJ cannot proceed with it, a
successor ALJ may do so. At the request of a party, the successor ALJ
may recall any witness whose testimony is material and disputed, and who
is available to testify again without undue burden. The successor ALJ
may, within his or her discretion, recall any other witness.
Sec. 221.33 Under what circumstances may the ALJ be disqualified?
(a) The ALJ may withdraw from a case at any time the ALJ deems
himself or herself disqualified.
(b) At any time before issuance of the ALJ's decision, any party may
move that the ALJ disqualify himself or herself for personal bias or
other valid cause.
(1) The party must file the motion promptly after discovering facts
or other reasons allegedly constituting cause for disqualification.
(2) The party must file with the motion an affidavit or declaration
setting
[[Page 109]]
forth the facts or other reasons in detail.
(c) The ALJ must rule upon the motion, stating the grounds for the
ruling.
(1) If the ALJ concludes that the motion is timely and meritorious,
he or she must disqualify himself or herself and withdraw from the case.
(2) If the ALJ does not disqualify himself or herself and withdraw
from the case, the ALJ must continue with the hearing process and issue
a decision.
Sec. 221.34 What is the law governing ex parte communications?
(a) Ex parte communications with the ALJ or his or her staff are
prohibited in accordance with 5 U.S.C. 554(d).
(b) This section does not prohibit ex parte inquiries concerning
case status or procedural requirements, unless the inquiry involves an
area of controversy in the hearing process.
Sec. 221.35 What are the requirements for motions?
(a) General. Any party may apply for an order or ruling on any
matter related to the hearing process by presenting a motion to the ALJ.
A motion may be presented any time after the Department of Commerce's
designated ALJ office issues a docketing notice under Sec. 221.30.
(1) A motion made at a hearing may be stated orally on the record,
unless the ALJ directs that it be reduced to writing.
(2) Any other motion must:
(i) Be in writing;
(ii) Comply with the requirements of this subpart with respect to
form, content, filing, and service; and
(iii) Not exceed 10 pages.
(b) Content. (1) Each motion must state clearly and concisely:
(i) Its purpose and the relief sought;
(ii) The facts constituting the grounds for the relief sought; and
(iii) Any applicable statutory or regulatory authority.
(2) A proposed order must accompany the motion.
(c) Response. Except as otherwise required by this part or by order
of the ALJ, any other party may file a response to a written motion
within 10 days after service of the motion. When a party presents a
motion at a hearing, any other party may present a response orally on
the record.
(d) Reply. Unless the ALJ orders otherwise, no reply to a response
may be filed.
(e) Effect of filing. Unless the ALJ orders otherwise, the filing of
a motion does not stay the hearing process.
(f) Ruling. The ALJ will rule on the motion as soon as practicable,
either orally on the record or in writing. He or she may summarily deny
any dilatory, repetitive, or frivolous motion.
Prehearing Conferences and Discovery
Sec. 221.40 What are the requirements for prehearing conferences?
(a) Initial prehearing conference. The ALJ will conduct an initial
prehearing conference with the parties at the time specified in the
docketing notice under Sec. 221.30, on or about the 20th day after
issuance of the referral notice under Sec. 221.25(c).
(1) The initial prehearing conference will be used:
(i) To identify, narrow, and clarify the disputed issues of material
fact and exclude issues that do not qualify for review as factual,
material, and disputed;
(ii) To consider the parties' motions for discovery under Sec.
221.41 and to set a deadline for the completion of discovery;
(iii) To discuss the evidence on which each party intends to rely at
the hearing;
(iv) To set the deadline for submission of written testimony under
Sec. 221.52; and
(v) To set the date, time, and place of the hearing.
(2) The initial prehearing conference may also be used:
(i) To discuss limiting and grouping witnesses to avoid duplication;
(ii) To discuss stipulations of fact and of the content and
authenticity of documents;
(iii) To consider requests that the ALJ take official notice of
public records or other matters;
(iv) To discuss the submission of written testimony, briefs, or
other documents in electronic form; and
[[Page 110]]
(v) To consider any other matters that may aid in the disposition of
the case.
(b) Other conferences. The ALJ may in his or her discretion direct
the parties to attend one or more other prehearing conferences, if
consistent with the need to complete the hearing process within 90 days.
Any party may by motion request a conference.
(c) Notice. The ALJ must give the parties reasonable notice of the
time and place of any conference. A conference will ordinarily be held
by telephone, unless the ALJ orders otherwise.
(d) Preparation. (1) Each party's representative must be fully
prepared for a discussion of all issues properly before the conference,
both procedural and substantive. The representative must be authorized
to commit the party that he or she represents respecting those issues.
(2) Before the date set for the initial prehearing conference, the
parties' representatives must make a good faith effort:
(i) To meet in person, by telephone, or by other appropriate means;
and
(ii) To reach agreement on discovery and the schedule of remaining
steps in the hearing process.
(e) Failure to attend. Unless the ALJ orders otherwise, a party that
fails to attend or participate in a conference, after being served with
reasonable notice of its time and place, waives all objections to any
agreements reached in the conference and to any consequent orders or
rulings.
(f) Scope. During a conference, the ALJ may dispose of any
procedural matters related to the case.
(g) Order. Within 2 days after the conclusion of each conference,
the ALJ must issue an order that recites any agreements reached at the
conference and any rulings made by the ALJ during or as a result of the
conference.
Sec. 221.41 How may parties obtain discovery of information needed
for the case?
(a) General. By agreement of the parties or with the permission of
the ALJ, a party may obtain discovery of information to assist the party
in preparing or presenting its case. Available methods of discovery are:
(1) Written interrogatories;
(2) Depositions as provided in paragraph (h) of this section; and
(3) Requests for production of designated documents or tangible
things or for entry on designated land for inspection or other purposes.
(b) Criteria. Discovery may occur only as agreed to by the parties
or as authorized by the ALJ in a written order or during a prehearing
conference. The ALJ may authorize discovery only if the party requesting
discovery demonstrates:
(1) That the discovery will not unreasonably delay the hearing
process;
(2) That the information sought:
(i) Will be admissible at the hearing or appears reasonably
calculated to lead to the discovery of admissible evidence;
(ii) Is not already in the license proceeding record or otherwise
obtainable by the party;
(iii) Is not cumulative or repetitious; and
(iv) Is not privileged or protected from disclosure by applicable
law;
(3) That the scope of the discovery is not unduly burdensome;
(4) That the method to be used is the least burdensome method
available;
(5) That any trade secrets or proprietary information can be
adequately safeguarded; and
(6) That the standards for discovery under paragraphs (f) through
(h) of this section have been met, if applicable.
(c) Motions. A party may initiate discovery:
(1) Pursuant to an agreement of the parties; or
(2) By filing a motion that:
(i) Briefly describes the proposed method(s), purpose, and scope of
the discovery;
(ii) Explains how the discovery meets the criteria in paragraphs
(b)(1) through (b)(6) of this section; and
(iii) Attaches a copy of any proposed discovery request (written
interrogatories, notice of deposition, or request for production of
designated documents or tangible things or for entry on designated
land).
[[Page 111]]
(d) Timing of motions. A party must file any discovery motion under
paragraph (c)(2) of this section within 7 days after issuance of the
referral notice under Sec. 221.25(c).
(e) Objections. (1) A party must file any objections to a discovery
motion or to specific portions of a proposed discovery request within 7
days after service of the motion.
(2) An objection must explain how, in the objecting party's view,
the discovery sought does not meet the criteria in paragraphs (b)(1)
through (b)(6) of this section.
(f) Materials prepared for hearing. A party generally may not obtain
discovery of documents and tangible things otherwise discoverable under
paragraph (b) of this section if they were prepared in anticipation of
or for the hearing by or for another party's representative (including
the party's attorney, expert, or consultant).
(1) If a party wants to discover such materials, it must show:
(i) That it has substantial need of the materials in preparing its
own case; and
(ii) That the party is unable without undue hardship to obtain the
substantial equivalent of the materials by other means.
(2) In ordering discovery of such materials when the required
showing has been made, the ALJ must protect against disclosure of the
mental impressions, conclusions, opinions, or legal theories of an
attorney.
(g) Experts. Unless restricted by the ALJ, a party may discover any
facts known or opinions held by an expert concerning any relevant
matters that are not privileged. Such discovery will be permitted only
if:
(1) The expert is expected to be a witness at the hearing; or
(2) The expert is relied on by another expert who is expected to be
a witness at the hearing, and the party shows:
(i) That it has a compelling need for the information; and
(ii) That it cannot practicably obtain the information by other
means.
(h) Limitations on depositions. (1) A party may depose a witness
only if the party shows that the witness:
(i) Will be unable to attend the hearing because of age, illness, or
other incapacity; or
(ii) Is unwilling to attend the hearing voluntarily, and the party
is unable to compel the witness's attendance at the hearing by subpoena.
(2) Paragraph (h)(1)(ii) of this section does not apply to any
person employed by or under contract with the party seeking the
deposition.
(3) A party may depose a senior Department employee only if the
party shows:
(i) That the employee's testimony is necessary in order to provide
significant, unprivileged information that is not available from any
other source or by less burdensome means; and
(ii) That the deposition would not significantly interfere with the
employee's ability to perform his or her government duties.
(i) Completion of discovery. All discovery must be completed within
25 days after the initial prehearing conference, unless the ALJ sets a
different deadline.
Sec. 221.42 When must a party supplement or amend information it
has previously provided?
(a) Discovery. A party must promptly supplement or amend any prior
response to a discovery request if it learns that the response:
(1) Was incomplete or incorrect when made; or
(2) Though complete and correct when made, is now incomplete or
incorrect in any material respect.
(b) Witnesses and exhibits. (1) Within 5 days after the date set for
completion of discovery, each party must file an updated version of the
list of witnesses and exhibits required under Sec. Sec. 221.21(c),
221.22(c), or 221.24(c).
(2) If a party wishes to include any new witness or exhibit on its
updated list, it must provide an explanation of why it was not feasible
for the party to include the witness or exhibit on its list under
Sec. Sec. 221.21(c), 221.22(c), or 221.24(c).
(c) Failure to disclose. (1) A party that fails to disclose
information required under Sec. Sec. 221.21(c), 221.22(c), or
221.24(c), or paragraphs (a) or (b) of this section, will not be
permitted to introduce as
[[Page 112]]
evidence at the hearing testimony from a witness or other information
that it failed to disclose.
(2) Paragraph (c)(1) of this section does not apply if the failure
to disclose was substantially justified or is harmless.
(3) Before or during the hearing, a party may object to the
admission of evidence under paragraph (c)(1) of this section.
(4) The ALJ will consider the following in determining whether to
exclude evidence under paragraphs (c)(1) through (c)(3) of this section:
(i) The prejudice to the objecting party;
(ii) The ability of the objecting party to cure any prejudice;
(iii) The extent to which presentation of the evidence would disrupt
the orderly and efficient hearing of the case;
(iv) The importance of the evidence; and
(v) The reason for the failure to disclose, including any bad faith
or willfulness regarding the failure.
Sec. 221.43 What are the requirements for written interrogatories?
(a) Motion. Except upon agreement of the parties, a party wishing to
propound interrogatories must file a motion under Sec. 221.41(c).
(b) ALJ order. During or promptly after the initial prehearing
conference, the ALJ will issue an order under Sec. 221.41(b) with
respect to any discovery motion requesting the use of written
interrogatories. The order will:
(1) Grant the motion and approve the use of some or all of the
proposed interrogatories; or
(2) Deny the motion.
(c) Answers to interrogatories. Except upon agreement of the
parties, the party to whom the proposed interrogatories are directed
must file its answers to any interrogatories approved by the ALJ within
15 days after issuance of the order under paragraph (b) of this section.
(1) Each approved interrogatory must be answered separately and
fully in writing.
(2) The party or its representative must sign the answers to
interrogatories under oath or affirmation.
(d) Access to records. A party's answer to an interrogatory is
sufficient when:
(1) The information may be obtained from an examination of records,
or from a compilation, abstract, or summary based on such records;
(2) The burden of obtaining the information from the records is
substantially the same for all parties;
(3) The answering party specifically identifies the individual
records from which the requesting party may obtain the information and
where the records are located; and
(4) The answering party provides the requesting party with
reasonable opportunity to examine the records and make a copy,
compilation, abstract, or summary.
Sec. 221.44 What are the requirements for depositions?
(a) Motion and notice. Except upon agreement of the parties, a party
wishing to take a deposition must file a motion under Sec. 221.41(c).
Any notice of deposition filed with the motion must state:
(1) The time and place that the deposition is to be taken;
(2) The name and address of the person before whom the deposition is
to be taken;
(3) The name and address of the witness whose deposition is to be
taken; and
(4) Any documents or materials that the witness is to produce.
(b) ALJ order. During or promptly after the initial prehearing
conference, the ALJ will issue an order under Sec. 221.41(b) with
respect to any discovery motion requesting the taking of a deposition.
The order will:
(1) Grant the motion and approve the taking of the deposition,
subject to any conditions or restrictions the ALJ may impose; or
(2) Deny the motion.
(c) Arrangements. If the parties agree to or the ALJ approves the
taking of the deposition, the party requesting the deposition must make
appropriate arrangements for necessary facilities and personnel.
(1) The deposition will be taken at the time and place agreed to by
the parties or indicated in the ALJ's order.
[[Page 113]]
(2) The deposition may be taken before any disinterested person
authorized to administer oaths in the place where the deposition is to
be taken.
(3) Any party that objects to the taking of a deposition because of
the disqualification of the person before whom it is to be taken must do
so:
(i) Before the deposition begins; or
(ii) As soon as the disqualification becomes known or could have
been discovered with reasonable diligence.
(4) A deposition may be taken by telephone conference call, if
agreed to by the parties or approved in the ALJ's order.
(d) Testimony. Each witness deposed must be placed under oath or
affirmation, and the other parties must be given an opportunity for
cross-examination.
(e) Representation of witness. The witness being deposed may have
counsel or another representative present during the deposition.
(f) Recording and transcript. Except as provided in paragraph (g) of
this section, the deposition must be stenographically recorded and
transcribed at the expense of the party that requested the deposition.
(1) Any other party may obtain a copy of the transcript at its own
expense.
(2) Unless waived by the deponent, the deponent will have 3 days
after receiving the transcript to read and sign it.
(3) The person before whom the deposition was taken must certify the
transcript following receipt of the signed transcript from the deponent
or expiration of the 3-day review period, whichever occurs first.
(g) Video recording. The testimony at a deposition may be recorded
on videotape, subject to any conditions or restrictions that the parties
may agree to or the ALJ may impose, at the expense of the party
requesting the recording.
(1) The video recording may be in conjunction with an oral
examination by telephone conference held under paragraph (c)(3) of this
section.
(2) After the deposition has been taken, the person recording the
deposition must:
(i) Provide a copy of the videotape to any party that requests it,
at the requesting party's expense; and
(ii) Attach to the videotape a statement identifying the case and
the deponent and certifying the authenticity of the video recording.
(h) Use of deposition. A deposition may be used at the hearing as
provided in Sec. 221.53.
Sec. 221.45 What are the requirements for requests for documents or
tangible things or entry on land?
(a) Motion. Except upon agreement of the parties, a party wishing to
request the production of designated documents or tangible things or
entry on designated land must file a motion under Sec. 221.41(c). A
request may include any of the following that are in the possession,
custody, or control of another party:
(1) The production of designated documents for inspection and
copying, other than documents that are already in the license proceeding
record;
(2) The production of designated tangible things for inspection,
copying, testing, or sampling; or
(3) Entry on designated land or other property for inspection and
measuring, surveying, photographing, testing, or sampling either the
property or any designated object or operation on the property.
(b) ALJ order. During or promptly after the initial prehearing
conference, the ALJ will issue an order under Sec. 221.41(b) with
respect to any discovery motion requesting the production of documents
or tangible things or entry on land for inspection, copying, or other
purposes. The order will:
(1) Grant the motion and approve the use of some or all of the
proposed requests; or
(2) Deny the motion.
(c) Compliance with order. Except upon agreement of the parties, the
party to whom any approved request for production is directed must
permit the approved inspection and other activities within 15 days after
issuance of the order under paragraph (a) of this section.
[[Page 114]]
Sec. 221.46 What sanctions may the ALJ impose for failure to comply
with discovery?
(a) Upon motion of a party, the ALJ may impose sanctions under
paragraph (b) of this section if any party:
(1) Fails to comply with an order approving discovery; or
(2) Fails to supplement or amend a response to discovery under Sec.
221.42(a).
(b) The ALJ may impose one or more of the following sanctions:
(1) Infer that the information, testimony, document, or other
evidence withheld would have been adverse to the party;
(2) Order that, for the purposes of the hearing, designated facts
are established;
(3) Order that the party not introduce into evidence, or otherwise
rely on to support its case, any information, testimony, document, or
other evidence:
(i) That the party improperly withheld; or
(ii) That the party obtained from another party in discovery;
(4) Allow another party to use secondary evidence to show what the
information, testimony, document, or other evidence withheld would have
shown; or
(5) Take other appropriate action to remedy the party's failure to
comply.
Sec. 221.47 What are the requirements for subpoenas and witness fees?
(a) Request for subpoena. (1) Except as provided in paragraph (a)(2)
of this section, any party may file a motion requesting the ALJ to issue
a subpoena to the extent authorized by law for the attendance of a
person, the giving of testimony, or the production of documents or other
relevant evidence during discovery or for the hearing.
(2) A party may subpoena a senior Department employee only if the
party shows:
(i) That the employee's testimony is necessary in order to provide
significant, unprivileged information that is not available from any
other source or by less burdensome means; and
(ii) That the employee's attendance would not significantly
interfere with the ability to perform his or her government duties.
(b) Service. (1) A subpoena may be served by any person who is not a
party and is 18 years of age or older.
(2) Service must be made by hand delivering a copy of the subpoena
to the person named therein.
(3) The person serving the subpoena must:
(i) Prepare a certificate of service setting forth:
(A) The date, time, and manner of service; or
(B) The reason for any failure of service; and
(ii) Swear to or affirm the certificate, attach it to a copy of the
subpoena, and return it to the party on whose behalf the subpoena was
served.
(c) Witness fees. (1) A party who subpoenas a witness who is not a
party must pay him or her the same fees and mileage expenses that are
paid witnesses in the district courts of the United States.
(2) A witness who is not a party and who attends a deposition or
hearing at the request of any party without having been subpoenaed to do
so is entitled to the same fees and mileage expenses as if he or she had
been subpoenaed. However, this paragraph does not apply to federal
employees who are called as witnesses by a Department.
(d) Motion to quash. (1) A person to whom a subpoena is directed may
request by motion that the ALJ quash or modify the subpoena.
(2) The motion must be filed:
(i) Within 5 days after service of the subpoena; or
(ii) At or before the time specified in the subpoena for compliance,
if that is less than 5 days after service of the subpoena.
(3) The ALJ may quash or modify the subpoena if it:
(i) Is unreasonable;
(ii) Requires evidence during discovery that is not discoverable; or
(iii) Requires evidence during a hearing that is privileged or
irrelevant.
(e) Enforcement. For good cause shown, the ALJ may apply to the
appropriate United States District Court for the issuance of an order
compelling the appearance and testimony of a witness or the production
of evidence as set forth in a subpoena that has been duly issued and
served.
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Hearing, Briefing, and Decision
Sec. 221.50 When and where will the hearing be held?
(a) Except as provided in paragraph (b) of this section, the hearing
will be held at the time and place set at the initial prehearing
conference under Sec. 221.40, generally within 15 days after the date
set for completion of discovery.
(b) On motion by a party or on the ALJ's initiative, the ALJ may
change the date, time, or place of the hearing if he or she finds:
(1) That there is good cause for the change; and
(2) That the change will not unduly prejudice the parties and
witnesses.
Sec. 221.51 What are the parties' rights during the hearing?
Consistent with the provisions of this subpart, each party has the
following rights during the hearing, as necessary to assure full and
accurate disclosure of the facts:
(a) To present direct and rebuttal evidence;
(b) To make objections, motions, and arguments; and
(c) To cross-examine witnesses and to conduct re-direct and re-cross
examination as permitted by the ALJ.
Sec. 221.52 What are the requirements for presenting testimony?
(a) Written direct testimony. Unless otherwise ordered by the ALJ,
all direct hearing testimony must be prepared and submitted in written
form.
(1) Prepared written testimony must:
(i) Have line numbers inserted in the left-hand margin of each page;
(ii) Be authenticated by an affidavit or declaration of the witness;
(iii) Be filed within 5 days after the date set for completion of
discovery, unless the ALJ sets a different deadline; and
(iv) Be offered as an exhibit during the hearing.
(2) Any witness submitting written testimony must be available for
cross-examination at the hearing.
(b) Oral testimony. Oral examination of a witness in a hearing,
including on cross-examination or redirect, must be conducted under oath
and in the presence of the ALJ, with an opportunity for all parties to
question the witness.
(c) Telephonic testimony. The ALJ may by order allow a witness to
testify by telephonic conference call.
(1) The arrangements for the call must let each party listen to and
speak to the witness and each other within the hearing of the ALJ.
(2) The ALJ will ensure the full identification of each speaker so
the reporter can create a proper record.
(3) The ALJ may issue a subpoena under Sec. 221.47 directing a
witness to testify by telephonic conference call.
Sec. 221.53 How may a party use a deposition in the hearing?
(a) In general. Subject to the provisions of this section, a party
may use in the hearing any part or all of a deposition taken under Sec.
221.44 against any party who:
(1) Was present or represented at the taking of the deposition; or
(2) Had reasonable notice of the taking of the deposition.
(b) Admissibility. (1) No part of a deposition will be included in
the hearing record, unless received in evidence by the ALJ.
(2) The ALJ will exclude from evidence any question and response to
which an objection:
(i) Was noted at the taking of the deposition; and
(ii) Would have been sustained if the witness had been personally
present and testifying at a hearing.
(3) If a party offers only part of a deposition in evidence:
(i) An adverse party may require the party to introduce any other
part that ought in fairness to be considered with the part introduced;
and
(ii) Any other party may introduce any other parts.
(c) Videotaped deposition. If the deposition was recorded on
videotape and is admitted into evidence, relevant portions will be
played during the hearing and transcribed into the record by the
reporter.
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Sec. 221.54 What are the requirements for exhibits, official notice,
and stipulations?
(a) General. (1) Except as provided in paragraphs (b) through (e) of
this section, any material offered in evidence, other than oral
testimony, must be offered in the form of an exhibit.
(2) Each exhibit offered by a party must be marked for
identification.
(3) Any party who seeks to have an exhibit admitted into evidence
must provide:
(i) The original of the exhibit to the reporter, unless the ALJ
permits the substitution of a copy; and
(ii) A copy of the exhibit to the ALJ.
(b) Material not offered. If a document offered as an exhibit
contains material not offered as evidence:
(1) The party offering the exhibit must:
(i) Designate the matter offered as evidence;
(ii) Segregate and exclude the material not offered in evidence, to
the extent practicable; and
(iii) Provide copies of the entire document to the other parties
appearing at the hearing.
(2) The ALJ must give the other parties an opportunity to inspect
the entire document and offer in evidence any other portions of the
document.
(c) Official notice. (1) At the request of any party at the hearing,
the ALJ may take official notice of any matter of which the courts of
the United States may take judicial notice, including the public records
of NMFS and any other Department party.
(2) The ALJ must give the other parties appearing at the hearing an
opportunity to show the contrary of an officially noticed fact.
(3) Any party requesting official notice of a fact after the
conclusion of the hearing must show good cause for its failure to
request official notice during the hearing.
(d) Stipulations. (1) The parties may stipulate to any relevant
facts or to the authenticity of any relevant documents.
(2) If received in evidence at the hearing, a stipulation is binding
on the stipulating parties.
(3) A stipulation may be written or made orally at the hearing.
Sec. 221.55 What evidence is admissible at the hearing?
(a) General. (1) Subject to the provisions of Sec. 221.42(b), the
ALJ may admit any written, oral, documentary, or demonstrative evidence
that is:
(i) Relevant, reliable, and probative; and
(ii) Not privileged or unduly repetitious or cumulative.
(2) The ALJ may exclude evidence if its probative value is
substantially outweighed by the risk of undue prejudice, confusion of
the issues, or delay.
(3) Hearsay evidence is admissible. The ALJ may consider the fact
that evidence is hearsay when determining its probative value.
(4) The Federal Rules of Evidence do not directly apply to the
hearing, but may be used as guidance by the ALJ and the parties in
interpreting and applying the provisions of this section.
(b) Objections. Any party objecting to the admission or exclusion of
evidence shall concisely state the grounds. A ruling on every objection
must appear in the record.
Sec. 221.56 What are the requirements for transcription of the hearing?
(a) Transcript and reporter's fees. The hearing will be transcribed
verbatim.
(1) The Department of Commerce's designated ALJ office will secure
the services of a reporter and pay the reporter's fees to provide an
original transcript to the Department of Commerce's designated ALJ
office on an expedited basis.
(2) Each party must pay the reporter for any copies of the
transcript obtained by that party.
(b) Transcript Corrections. (1) Any party may file a motion
proposing corrections to the transcript. The motion must be filed within
5 days after receipt of the transcript, unless the ALJ sets a different
deadline.
(2) Unless a party files a timely motion under paragraph (b)(1) of
this section, the transcript will be presumed to be correct and
complete, except for obvious typographical errors.
(3) As soon as practicable after the close of the hearing and after
consideration of any motions filed under paragraph (b)(1) of this
section, the ALJ
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will issue an order making any corrections to the transcript that the
ALJ finds are warranted.
Sec. 221.57 What is the standard of proof?
The standard of proof is a preponderance of the evidence.
Sec. 221.58 When will the hearing record close?
(a) The hearing record will close when the ALJ closes the hearing,
unless he or she directs otherwise.
(b) Evidence may not be added after the hearing record is closed,
but the transcript may be corrected under Sec. 221.56(b).
Sec. 221.59 What are the requirements for post-hearing briefs?
(a) General. (1) Each party may file a post-hearing brief within 10
days after the close of the hearing, unless the ALJ sets a different
deadline.
(2) A party may file a reply brief only if requested by the ALJ. The
deadline for filing a reply brief, if any, will be set by the ALJ.
(3) The ALJ may limit the length of the briefs to be filed under
this section.
(b) Content. (1) An initial brief must include:
(i) A concise statement of the case;
(ii) A separate section containing proposed findings regarding the
issues of material fact, with supporting citations to the hearing
record;
(iii) Arguments in support of the party's position; and
(iv) Any other matter required by the ALJ.
(2) A reply brief, if requested by the ALJ, must be limited to any
issues identified by the ALJ.
(c) Form. (1) An exhibit admitted in evidence or marked for
identification in the record may not be reproduced in the brief.
(i) Such an exhibit may be reproduced, within reasonable limits, in
an appendix to the brief.
(ii) Any pertinent analysis of an exhibit may be included in a
brief.
(2) If a brief exceeds 20 pages, it must contain:
(i) A table of contents and of points made, with page references;
and
(ii) An alphabetical list of citations to legal authority, with page
references.
Sec. 221.60 What are the requirements for the ALJ's decision?
(a) Timing. The ALJ must issue a decision within the shorter of the
following time periods:
(1) 30 days after the close of the hearing under Sec. 221.58; or
(2) 90 days after issuance of the referral notice under Sec.
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c).
(b) Content. (1) The decision must contain:
(i) Findings of fact on all disputed issues of material fact;
(ii) Conclusions of law necessary to make the findings of fact (such
as rulings on materiality and on the admissibility of evidence); and
(iii) Reasons for the findings and conclusions.
(2) The ALJ may adopt any of the findings of fact proposed by one or
more of the parties.
(3) The decision will not contain conclusions as to whether any
preliminary condition or prescription should be adopted, modified, or
rejected, or whether any proposed alternative should be adopted or
rejected.
(c) Service. Promptly after issuing his or her decision, the ALJ
must:
(1) Serve the decision on each party to the hearing; and
(2) Forward a copy of the decision to FERC, along with the complete
hearing record, for inclusion in the license proceeding record.
(d) Finality. The ALJ's decision under this section will be final,
with respect to the disputed issues of material fact, for NMFS and any
other Department involved in the hearing. To the extent the ALJ's
decision forms the basis for any condition or prescription subsequently
included in the license, it may be subject to judicial review under 16
U.S.C. 825l(b).
Subpart C_Alternatives Process
Sec. 221.70 How must documents be filed and served under this subpart?
(a) Filing. (1) A document under this subpart must be filed using
one of the methods set forth in Sec. 221.12(b).
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(2) A document is considered filed on the date it is received.
However, any document received after 5 p.m. at the place where the
filing is due is considered filed on the next regular business day.
(b) Service. (1) Any document filed under this subpart must be
served at the same time the document is delivered or sent for filing. A
complete copy of the document must be served on each license party and
FERC, using:
(i) One of the methods of service in Sec. 221.13(c); or
(ii) Regular mail.
(2) The provisions of Sec. 221.13(d) and (e) regarding
acknowledgment and certificate of service apply to service under this
subpart.