[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2016 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 50
Wildlife and Fisheries
________________________
Parts 200 to 227
Revised as of October 1, 2016
Containing a codification of documents of general
applicability and future effect
As of October 1, 2016
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
U.S. GOVERNMENT OFFICIAL EDITION NOTICE
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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
Finding Aids:
Table of CFR Titles and Chapters........................ 967
Alphabetical List of Agencies Appearing in the CFR...... 987
List of CFR Sections Affected........................... 997
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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
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, October 1, 2016), consult the ``List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
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
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
PAST PROVISIONS OF THE CODE
Provisions of the Code that are no longer in force and effect as of
the revision date stated on the cover of each volume are not carried.
Code users may find the text of provisions in effect on any given date
in the past by using the appropriate List of CFR Sections Affected
(LSA). For the convenience of the reader, a ``List of CFR Sections
Affected'' is published at the end of each CFR volume. For changes to
the Code prior to the LSA listings at the end of the volume, consult
previous annual editions of the LSA. For changes to the Code prior to
2001, consult the List of CFR Sections Affected compilations, published
for 1949-1963, 1964-1972, 1973-1985, and 1986-2000.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
editorially to indicate that a portion of the CFR was left vacant and
not accidentally dropped due to a printing or computer error.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
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.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
an approved incorporation by reference, please contact the agency that
issued the regulation containing that incorporation. If, after
contacting the agency, you find the material is not available, please
notify the Director of the Federal Register, National Archives and
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or call 202-741-6010.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Authorities
and Rules. A list of CFR titles, chapters, subchapters, and parts and an
alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
An index to the text of ``Title 3--The President'' is carried within
that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ``Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES
For a legal interpretation or explanation of any regulation in this
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the top of odd-numbered pages.
For inquiries concerning CFR reference assistance, call 202-741-6000
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The e-CFR is a regularly updated, unofficial editorial compilation
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of the Federal Register and the Government Publishing Office. It is
available at www.ecfr.gov.
Oliver A. Potts,
Director,
Office of the Federal Register.
October 1, 2016.
[[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
consist of 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 and contain the current regulations issued
under chapter I--United States Fish and Wildlife Service, Department of
the Interior. The seventh volume (parts 200-227) 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 volume (parts 228-599) 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
ninth and tenth 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, 2015.
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, Kenneth Payne was Chief Editor. The Code of Federal
Regulations publication program is under the direction of John Hyrum
Martinez, assisted by Stephen J. Frattini.
[[Page 1]]
TITLE 50--WILDLIFE AND FISHERIES
(This book contains parts 200 to 227)
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Part
chapter ii--National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 216
[[Page 3]]
CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
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SUBCHAPTER A--GENERAL PROVISIONS
Part Page
200 Small Business Size Standards Established by
NMFS for Regulatory Flexibility Act
Compliance Purposes Only................ 5
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
216 Regulations governing the taking and
importing of marine mammals............. 6
217 Regulations governing the take of marine
mammals incidental to specified
activities.............................. 88
218 Regulations governing the taking and
importing of marine mammals............. 144
219 Regulations governing the taking and
importing of marine mammals............. 217
220 [Reserved]
221 Conditions and prescriptions in FERC
hydropower licenses..................... 241
222 General endangered and threatened marine
species................................. 264
223 Threatened marine and anadromous species.... 291
224 Endangered marine and anadromous species.... 346
225 [Reserved]
226 Designated critical habitat................. 389
227 [Reserved]
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SUBCHAPTER A_GENERAL PROVISIONS
PART 200_SMALL BUSINESS SIZE STANDARDS ESTABLISHED BY NMFS FOR
REGULATORY FLEXIBILITY ACT COMPLIANCE PURPOSES ONLY--Table of Contents
Sec.
200.1 Purpose and scope.
200.2 Small business size standards and frequency of review.
Authority: 5 U.S.C. 601 et seq.
Source: 80 FR 81198, Dec. 29, 2015, unless otherwise noted.
Sec. 200.1 Purpose and scope.
(a) This part sets forth the National Marine Fisheries Service
(NMFS) small business size standards for NMFS to use in conducting
Regulatory Flexibility Act (RFA) analyses for NMFS actions subject to
the RFA. This part also sets forth the timeframe for NMFS to review its
small business size standards.
(b) NMFS has established the alternative size standards in this
part, for RFA compliance purposes only, in order to simplify the RFA
analyses done in support of NMFS' rules, better meet the RFA's intent by
more accurately representing expected disproportionate effects of NMFS'
rules between small and large businesses, create a standard that more
accurately reflects the size distribution of all businesses in the
industry, and allow NMFS to determine when changes to the standard are
necessary and appropriate.
Sec. 200.2 Small business size standards and frequency of review.
(a) NMFS' small business size standard for businesses, including
their affiliates, whose primary industry is commercial fishing is $11
million in annual gross receipts. This standard applies to all
businesses classified under North American Industry Classification
System (NAICS) code 11411 for commercial fishing, including all
businesses classified as commercial finfish fishing (NAICS 114111),
commercial shellfish fishing (NAICS 114112), and other commercial marine
fishing (NAICS 114119) businesses.
(b) NMFS will review each of the small business size standards in
paragraph (a) of this section at least once every 5 years to determine
if a change is warranted. A change may be warranted because of changes
in industry structure, market conditions, inflation, or other relevant
factors.
SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
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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.
216.18 Approaching humpback whales in Alaska.
216.19 Special restrictions for humpback whales in waters surrounding
the islands of Hawaii.
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 subsistence fur seal harvests.
216.73 Disposition of fur seal parts.
216.74 Cooperation between fur seal harvesters, tribal and 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.
216.102 Scope.
216.103 Definitions.
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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.
Subparts J-X[Reserved]
Figure 1 to Part 216--Northern Fur Seal Breeding Areas (Rookeries) and
Hauling Grounds on St. George Island, Alaska
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.
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.
Albacore tuna means the species Thunnus alalunga.
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
[[Page 8]]
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.
Bigeye tuna means the species Thunnus obesus.
Bluefin tuna means the species Thunnus thynnus or Thunnus
orientalis.
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 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.
[[Page 9]]
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.
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
[[Page 10]]
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.
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.
Longtail tuna means the species Thunnus tonngol.
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.
[[Page 11]]
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.
Skipjack tuna means the species Euthynnus (Katsuwonus) pelamis.
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
United States of America (50 CFR part 300, subpart D).
Southern bluefin tuna means the species Thunnus maccoyii.
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;
[[Page 12]]
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 means any fish of the genus Thunnus and the species Euthynnus
(Katsuwonus) pelamis.
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.
Yellowfin tuna means the species Thunnus albacares (synonomy:
Neothunnus macropterus).
[39 FR 1852, Jan. 15, 1974]
Editorial Note: For Federal Register citations affecting Sec.
216.3, see the List of CFR Sections Affected, which appears in the
Finding Aids section of the printed volume and at www.fdsys.gov.
Effective Date Note: At 81 FR 54412, Aug. 15, 2016, Sec. 216.3 was
amended by revising the definition for ``Import''; and adding
definitions for ``Bycatch limit'', ``Comparability finding'', ``Exempt
fishery'', ``Exemption period'', ``Export fishery'', ``Fish and fish
product'', ``Intermediary nation'', ``List of Foreign Fisheries'',
``Transboundary stock'', and ``U.S. regulatory program'' in alphabetical
order, effective Jan. 1, 2017. For the convenience of the user, the
revision and additions are set forth as follows:
Sec. 216.3 Definitions.
* * * * *
Bycatch limit means the calculation of a potential biological
removal level for a particular marine mammal stock, as defined in Sec.
229.2 of this chapter, or comparable scientific metric established by
the harvesting nation or applicable regional fishery management
organization or intergovernmental agreement.
* * * * *
Comparability finding means a finding by the Assistant Administrator
that the harvesting nation for an export or exempt fishery has met the
applicable conditions specified in Sec. 216.24(h)(6)(iii) subject to
the additional considerations for comparability determinations set out
in Sec. 216.24(h)(7).
* * * * *
Exempt fishery means a foreign commercial fishing operation
determined by the Assistant Administrator to be the source of exports of
commercial fish and fish products to the United States and to have a
remote likelihood of, or no known, incidental mortality and serious
injury of marine mammals in the course of commercial fishing operations.
A
[[Page 13]]
commercial fishing operation that has a remote likelihood of causing
incidental mortality and serious injury of marine mammals is one that
collectively with other foreign fisheries exporting fish and fish
products to the United States causes the annual removal of:
(1) Ten percent or less of any marine mammal stock's bycatch limit;
or
(2) More than 10 percent of any marine mammal stock's bycatch limit,
yet that fishery by itself removes 1 percent or less of that stock's
bycatch limit annually; or
(3) Where reliable information has not been provided by the
harvesting nation on the frequency of incidental mortality and serious
injury of marine mammals caused by the commercial fishing operation, the
Assistant Administrator may determine whether the likelihood of
incidental mortality and serious injury is ``remote'' by evaluating
information concerning factors such as fishing techniques, gear used,
methods used to deter marine mammals, target species, seasons and areas
fished, qualitative data from logbooks or fisher reports, stranding
data, the species and distribution of marine mammals in the area, or
other factors at the discretion of the Assistant Administrator. A
foreign fishery will not be classified as an exempt fishery unless the
Assistant Administrator has reliable information from the harvesting
nation, or other information to support such a finding.
Exemption period means the one-time, five-year period that commences
January 1, 2017, during which commercial fishing operations that are the
source of exports of commercial fish and fish products to the United
States will be exempt from the prohibitions of Sec. 216.24(h)(1).
Export fishery means a foreign commercial fishing operation
determined by the Assistant Administrator to be the source of exports of
commercial fish and fish products to the United States and to have more
than a remote likelihood of incidental mortality and serious injury of
marine mammals (as defined in the definition of an ``exempt fishery'')
in the course of its commercial fishing operations. Where reliable
information has not been provided by the harvesting nation on the
frequency of incidental mortality and serious injury of marine mammals
caused by the commercial fishing operation, the Assistant Administrator
may determine whether the likelihood of incidental mortality and serious
injury is more than ``remote'' by evaluating information concerning
factors such as fishing techniques, gear used, methods used to deter
marine mammals, target species, seasons and areas fished, qualitative
data from logbooks or fisher reports, stranding data, and the species
and distribution of marine mammals in the area, or other factors at the
discretion of the Assistant Administrator that may inform whether the
likelihood of incidental mortality and serious injury of marine mammals
caused by the commercial fishing operation is more than ``remote.''
Commercial fishing operations not specifically identified in the current
List of Foreign Fisheries as either exempt or export fisheries are
deemed to be export fisheries until the next List of Foreign Fisheries
is published unless the Assistant Administrator has reliable information
from the harvesting nation to properly classify the foreign commercial
fishing operation. Additionally, the Assistant Administrator, may
request additional information from the harvesting nation and may
consider other relevant information as set forth in Sec. 216.24(h)(3)
about such commercial fishing operations and the frequency of incidental
mortality and serious injury of marine mammals, to properly classify the
foreign commercial fishing operation.
* * * * *
Fish and fish product means any marine finfish, mollusk, crustacean,
or other form of marine life other than marine mammals, reptiles, and
birds, whether fresh, frozen, canned, pouched, or otherwise prepared.
* * * * *
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 on
the importation of fish or fish products issued under the authority of
16 U.S.C. 1371(a)(2)(B), the definition of ``import'' in Sec.
216.24(f)(1)(ii) shall apply.
* * * * *
Intermediary nation means a nation that imports fish or fish
products from a fishery on the List of Foreign Fisheries and re-exports
such fish or fish products to the United States.
* * * * *
List of Foreign Fisheries means the most recent list, organized by
harvesting nation, of foreign commercial fishing operations exporting
fish or fish products to the United States, that is published in the
Federal Register by the Assistant Administrator
[[Page 14]]
and that classifies commercial fishing operations according to the
frequency and likelihood of incidental mortality and serious injury of
marine mammals during such commercial fishing operations as either an
exempt fishery or an export fishery.
* * * * *
Transboundary stock means a marine mammal stock occurring in the:
(1) Exclusive economic zones or territorial sea of the United States
and one or more other coastal States; or
(2) Exclusive economic zone or territorial sea of the United States
and on the high seas.
* * * * *
U.S. regulatory program means the regulatory program governing the
incidental mortality and serious injury of marine mammals in the course
of commercial fishing operations as specified in the Marine Mammal
Protection Act and its implementing regulations.
* * * * *
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]
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
[[Page 15]]
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.
(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;
[[Page 16]]
(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:
(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
[[Page 17]]
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.
(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]
[[Page 18]]
Sec. 216.18 Approaching humpback whales in Alaska.
(a) Prohibitions. Except as provided under paragraph (b) of this
section, it is unlawful for any person subject to the jurisdiction of
the United States to commit, to attempt to commit, to solicit another to
commit, or to cause to be committed, within 200 nautical miles (370.4
km) of Alaska, or within inland waters of the state, any of the acts in
paragraphs (a)(1) through (a)(3) of this section with respect to
humpback whales (Megaptera novaeangliae):
(1) Approach, by any means, including by interception (i.e., placing
a vessel in the path of an oncoming humpback whale so that the whale
surfaces within 100 yards (91.4 m) of the vessel), within 100 yards
(91.4 m) of any humpback whale;
(2) Cause a vessel or other object to approach within 100 yards
(91.4 m) of a humpback whale; or
(3) Disrupt the normal behavior or prior activity of a whale by any
other act or omission. A disruption of normal behavior may be manifested
by, among other actions on the part of the whale, a rapid change in
direction or speed; escape tactics such as prolonged diving, underwater
course changes, underwater exhalation, or evasive swimming patterns;
interruptions of breeding, nursing, or resting activities, attempts by a
whale to shield a calf from a vessel or human observer by tail swishing
or by other protective movement; or the abandonment of a previously
frequented area.
(b) Exceptions. The following exceptions apply, but any person who
claims the applicability of an exception has the burden of proving that
the exception applies:
(1) Paragraph (a) of this section does not apply if an approach is
authorized by the National Marine Fisheries Service through a permit
issued under subpart D of this part (Special Exceptions) or through a
similar authorization.
(2) Paragraph (a) of this section does not apply to the extent that
a vessel is restricted in its ability to maneuver and, because of the
restriction, cannot comply with paragraph (a) of this section.
(3) Paragraph (a) of this section does not apply to commercial
fishing vessels lawfully engaged in actively setting, retrieving or
closely tending commercial fishing gear. For purposes of this section,
commercial fishing means taking or harvesting fish or fishery resources
to sell, barter, or trade. Commercial fishing does not include
commercial passenger fishing operations (i.e., charter operations or
sport fishing activities).
(4) Paragraph (a) of this section does not apply to state, local, or
Federal government vessels operating in the course of official duty.
(5) Paragraph (a) of this section does not affect the rights of
Alaska Natives under 16 U.S.C. 1539(e).
(6) This section shall not take precedence over any more restrictive
conflicting Federal regulation pertaining to humpback whales, including
the regulations at 36 CFR 13.1102-13.1188 that pertain specifically to
the waters of Glacier Bay National Park and Preserve.
(c) General measures. Notwithstanding the prohibitions and
exceptions in paragraphs (a) and (b) of this section, to avoid
collisions with humpback whales, vessels must operate at a slow, safe
speed when near a humpback whale. ``Safe speed'' has the same meaning as
the term is defined in 33 CFR 83.06 and the International Regulations
for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602), with respect
to avoiding collisions with humpback whales.
[81 FR 62020, Sept. 8, 2016]
Effective Date Note: At 81 FR 62020, Sept. 8, 2016, Sec. 216.18 was
added, effective Oct. 11, 2016.
Sec. 216.19 Special restrictions for humpback whales in waters
surrounding the islands of Hawaii.
(a) Prohibitions. Except as noted in paragraph (b) of this section,
it is unlawful for any person subject to the jurisdiction of the United
States to commit, to attempt to commit, to solicit another to commit, or
to cause to be committed, within 200 nautical miles (370.4 km) of the
islands of Hawaii, any of the following acts with respect to humpback
whales (Megaptera novaeangliae):
(1) Operate any aircraft within 1,000 feet (304.8 m) of any humpback
whale;
[[Page 19]]
(2) Approach, by any means, within 100 yards (91.4 m) of any
humpback whale;
(3) Cause a vessel, person, or other object to approach within 100
yards (91.4 m) of a humpback whale;
(4) Approach a humpback whale by interception (i.e., placing an
aircraft, vessel, person, or other object in the path of a humpback
whale so that the whale approaches within 1,000 feet (304.8 m) of the
aircraft or 100 yards (91.4 m) of the vessel, person, or object); or
(5) Disrupt the normal behavior or prior activity of a whale by any
other act or omission. A disruption of normal behavior may be manifested
by, among other actions on the part of the whale, a rapid change in
direction or speed; escape tactics such as prolonged diving, underwater
course changes, underwater exhalation, or evasive swimming patterns;
interruptions of breeding, nursing, or resting activities, attempts by a
whale to shield a calf from a vessel or human observer by tail swishing
or by other protective movements; or the abandonment of a previously
frequented area.
(b) Exceptions. The prohibitions of paragraph (a) of this section do
not apply to:
(1) Federal, State, or local government vessels or persons operating
in the course of their official duties such as law enforcement, search
and rescue, or public safety;
(2) Vessel operations necessary to avoid an imminent and serious
threat to a person, vessel, or the environment;
(3) Vessels restricted in their ability to maneuver, and because of
this restriction are not able to comply with approach restrictions; or
(4) Vessels or persons authorized under permit or authorization
issued by NMFS to conduct scientific research or response efforts that
may result in taking of humpback whales.
(c) Affirmative defense. (1) In connection with any action alleging
a violation of this section, any person claiming the benefit of any
exemption, exception, or permit listed in paragraph (b) of this section
has the burden of proving that the exemption or exception is applicable,
or that the permit was granted and was valid and in force at the time of
the alleged violation.
(2) [Reserved]
Effective Date Note: At 81 FR 62017, Sept. 8, 2016, Sec. 216.19 was
added, effective Oct. 11, 2016.
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;
(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
[[Page 20]]
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 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
[[Page 21]]
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 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
[[Page 22]]
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 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
[[Page 23]]
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.
(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
[[Page 24]]
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 2008 and subsequent years. (A) Co-management
agreements pursuant to paragraph (f)(1) of this section may be
established for 5-year intervals beginning in 2008. Agreements must
include specific provisions regarding the number and allocation of
strikes, hunting practices to promote consistency with limitations in
paragraph (f)(2)(ii) of this section, and to improve efficiency of the
harvest, mitigating measures, and enforcement. Agreements may include
provisions regarding the sex composition of the beluga harvest.
(B) Strike/harvest levels for each 5-year planning interval
beginning in 2008 will be determined by the recovery of this stock as
measured by the average abundance in the prior 5-year interval and the
best estimate of the population growth rate using information obtained
in the 10 years prior to each 5-year interval. Criteria for categorizing
growth rates are presented below as an algorithm using the estimated
abundance, the distribution statistics for growth rates, and the date.
Harvest levels are subject to the Expected Mortality Limit. The
established strike levels are presented in the Harvest Table and the
following algorithm will be used to determine harvest levels for each 5-
year period beginning in 2008.
(1) NMFS will calculate the average stock abundance over the
previous 5-year period.
(2) NMFS will calculate a population growth rates from abundance
estimates for the most recent 10-year period prior to the next 5-year
period.
(3) Using the abundance and growth information obtained in
accordance with paragraphs (f)(2)(v)(B)(1) and (f)(2)(v)(B)(2), NMFS
will calculate the probabilities that the growth rate within the
population would be less than 1 percent, less than 2 percent, or greater
than 3 percent. NMFS will then use paragraphs (f)(2)(v)(B)(3(i)) and
(f)(2)(v)(B)(3)(vi) of this section to select the proper cell from the
Harvest Table to determine the harvest levels for the next 5-year
interval.
(i) Is the average stock abundance over the previous 5-year period
less than 350 beluga whales? If yes, the Harvest Table provides that the
harvest is zero during the next 5-year period. If no, go to
(f)(2)(v)(B)(3)(ii) of this section.
(ii) Is the current year 2035 or later and is there more than a 20
percent probability the growth rate is less than 1 percent? If yes, the
harvest is zero during the next 5-year period. If no, go to paragraph
(f)(2)(v)(B)(3)(iii) of this section.
(iii) Is the current year between 2020 and 2034 and there is more
than a 20 percent probability the growth rate is less than 1 percent? If
yes, the harvest is three whales during the next 5-year period. If no,
go to paragraph (f)(2)(v)(B)(3)(iv) of this section.
(iv) Is the current year 2015 or later and is there more than a 25
percent probability the growth rate is less than 2 percent? If yes, go
to the harvest table using the ``Low'' growth rate column. If no, go to
paragraph (f)(2)(v)(B)(3)(vi)) of this section.
(v) Is the current year prior to 2015 and is there more than a 75
percent probability the growth rate is less than 2 percent? If yes, go
to the harvest table using the ``Low'' growth rate column. If no, go to
paragraph (f)(2)(v)(B)(3)(vi) of this section.
(vi) Is there more than a 25-percent probability the growth rate is
more than 3 percent? If yes, go to the harvest table using the ``High''
growth rate column. If no, go to the harvest table using the
``Intermediate'' growth rate column.
[[Page 25]]
Harvest Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
Expected
5-year population averages ``High'' growth rate ``Intermediate'' growth ``Low'' growth rate Mortality
rate Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than 350.............................................. 0 0 0 -
350-399.................................................... 8 strikes in 5 years 5 strikes in 5 years 5 strikes in 5 years 21
400-449.................................................... 9 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 24
450-499.................................................... 10 strikes in 5 years 8 strikes in 5 years 5 strikes in 5 years 27
500-524.................................................... 14 strikes in 5 years 9 strikes in 5 years 5 strikes in 5 years 30
525-549.................................................... 16 strikes in 5 years 10 strikes in 5 years 5 strikes in 5 years 32
550-574.................................................... 20 strikes in 5 years 15 strikes in 5 years 5 strikes in 5 years 33
575-599.................................................... 22 strikes in 5 years 16 strikes in 5 years 5 strikes in 5 years 35
600-624.................................................... 24 strikes in 5 years 17 strikes in 5 years 6 strikes in 5 years 36
625-649.................................................... 26 strikes in 5 years 18 strikes in 5 years 6 strikes in 5 years 38
650-699.................................................... 28 strikes in 5 years 19 strikes in 5 years 7 strikes in 5 years 39
700-779.................................................... 32 strikes in 5 years 20 strikes in 5 years 7 strikes in 5 years 42
780 +...................................................... Consult with co-managers to
expand harvest levels while
allowing for the population
to grow
--------------------------------------------------------------------------------------------------------------------------------------------------------
(C) At the beginning of each 5-year period, an Expected Mortality
Limit is determined from the Harvest Table using the 5-year average
abundance. During the course of each calendar year, the number of beach
casts carcasses and carcasses found floating either reported to NMFS or
observed by NMFS personnel will be the number of mortalities for that
year. If at the end of each calendar year this number exceeds the
Expected Mortality Limit, then an unusual mortality event has occurred.
The Estimated Excess Mortalities will be calculated as twice the number
of reported dead whales above the Expected Mortality Limit. The harvest
will then be adjusted as follows:
(1) The harvest level for the remaining years of the current 5-year
period will be recalculated by reducing the 5-year average abundance
from the previous 5-year period by the Estimated Excess Mortalities. The
revised abundance estimate would then be used in the harvest table for
the remaining years and the harvest adjusted accordingly.
(2) For the subsequent 5-year period, for the purpose of calculating
the 5-year average, the Estimated Excess Mortalities would be subtracted
from the abundance estimates of the year of the excess mortality event
so that the average would reflect the loss to the population. This
average would then be used in the table to set the harvest level.
[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; 73 FR 60985, Oct. 15,
2008]
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
[[Page 26]]
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)(ii) and (e)(1) 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
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. ETP tuna purse seine vessel
permit application forms and instructions for their completion are
available from NMFS. To apply for an ETP vessel permit, a vessel owner
or managing owner must complete, sign, and submit the appropriate form
via fax to (562) 980-4047, for prioritization purposes as described
under Sec. 300.22(b)(4)(i)(D)(3) of this title, allowing at least 15
days for processing. To request that a vessel in excess of 400 st (362.8
mt) carrying capacity be categorized as active on the Vessel Register
under Sec. 300.22(b)(4)(i) of this title in the following calendar
year, the owner or managing owner must submit the vessel permit
application via fax, payment of the vessel permit application fee, and
payment of the vessel assessment fee no later than September 15 for
vessels for which a DML is requested for the following year, and no
later than November 30 for vessels for
[[Page 27]]
which a DML is not requested for the following year.
(5) Application for operator permit. An applicant for an operator
permit must complete, sign, and submit the appropriate form obtained
from NMFS and submit payment of the permit application fee to the
Administrator, Southwest Region, allowing at least 45 days for
processing. Application forms and instructions for their completion are
available from NMFS.
(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. The Assistant Administrator may require a
fee to be submitted with an application for an operator permit. The
level of such a fee shall be determined in accordance with the NOAA
Finance Handbook and specified by the Administrator, Southwest Region,
on the application form.
(iii) Vessel assessment fee. The vessel assessment fee supports the
placement of observers on individual tuna purse seine 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 purse seine vessel for which a
DML has been requested must submit the vessel assessment 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 is requested. Payment of
the vessel assessment 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 purse seine vessel for which
active or inactive status on the Vessel Register, as defined in Sec.
300.21 of this title, has been requested, but for which a DML has not
been requested, must submit payment of the vessel assessment 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 vessel assessment fee is required only
if the vessel is listed as active and is required to carry an observer,
or if the vessel is listed as inactive and exceeds 400 st (362.8 mt) in
carrying capacity. Payment of the vessel assessment 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
permitted and authorized under an alternative international tuna purse
seine fisheries management regime in the Pacific Ocean must submit the
vessel assessment fee, as established by the IATTC or other approved
observer program, to the Administrator, West Coast Region, prior to
obtaining an observer and entering the ETP to fish. Consistent with
Sec. 300.22(b)(1) 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 vessel assessment fee must be consistent with the fee for
active status on the Vessel Register under Sec. 300.22(b)(4)(i) 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 vessel assessment fee associated with active status, less
the vessel assessment fee associated with inactive status that was
already paid, before NMFS will request the IATTC Director change the
status of the vessel from inactive to active. Payment of the vessel
assessment fee is required only if the vessel is required to carry an
observer.
(E) The owner or managing owner of a purse seine vessel not listed
on the Vessel Register at the beginning of the
[[Page 28]]
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 vessel assessment fee associated with
active status only if the vessel is required to carry an observer,
before NMFS will request the IATTC Director change the status of the
vessel to active.
(F) Payments will be subject to a 10 percent surcharge if received
under paragraph (b)(6)(iii)(E) of this section for vessels that were
listed as active on the Vessel Register in the calendar year prior to
the year for which active status was requested; or if received after the
dates specified in paragraphs (b)(6)(iii)(A) or (b)(6)(iii)(B) of this
section for vessels for which active status is requested if the vessel
was listed as active during the year the request was made. Payments will
not be subject to a 10 percent surcharge if received under paragraph
(b)(6)(iii)(C) or (b)(6)(iii)(D) of this section, or if received under
paragraph (b)(6)(iii)(E) of this section for vessels that were not
listed as active on the Vessel Register in the calendar year prior to
the year for which active status was requested. Payments will also not
be subject to a 10 percent surcharge if received after the date
specified in paragraph (b)(6)(iii)(B) of this section for vessels for
which inactive status is requested, or for vessels for which active
status is requested if the vessel was not listed as active during the
year the request was made. The Administrator, Southwest Region, will
forward all vessel assessment fees described in this section to the
IATTC or to the 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
[[Page 29]]
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 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.
[[Page 30]]
(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 long-range, high-
intensity floodlights with a sodium lamp of at least 1000 watts, or a
multivapour lamp of at least 1500 watts, 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) Twice per year. At least twice 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. The first such inspection shall be
carried out before the vessel's request for a DML is submitted to the
IATTC. The second such inspection shall be carried out before
notification of any reallocation of DMLs for vessels with full-year DMLs
or during the last quarter of the year for vessels with second-semester
DMLs.
(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 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
[[Page 31]]
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.
(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.
[[Page 32]]
(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 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.
[[Page 33]]
(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 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.
[[Page 34]]
(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 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
[[Page 35]]
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 and an
International Fisheries Trade Permit. Shipments of tuna, tuna products,
and certain other fish products identified in paragraphs (f)(2)(i)
through (iii) of this section may not be imported into the United States
unless: a scanned copy of a properly completed Fisheries Certificate of
Origin (FCO), NOAA Form 370, associated certifications and statements
described in Sec. 216.91(a), and required data set are filed
electronically with U.S. Customs and Border Protection (CBP) at the time
of, or in advance of, importation as required under Sec. 300.323; and
the importer of record designated on the entry summary (Customs Form
7501) holds a valid International Fisheries Trade Permit as specified at
Sec. 300.322 of this title. ``Required data set'' has the same meaning
as Sec. 300.321 of this title (see definition of ``Documentation and
data sets required'').
(i) Imports requiring a Fisheries Certificate of Origin, subject to
yellowfin tuna embargo. All shipments containing yellowfin tuna or
yellowfin tuna products (other than fresh tuna) imported into the United
States must be accompanied by an FCO, including, but not limited to,
those imported under the following Harmonized Tariff Schedule of the
United States (HTS) numbers. Updated HTS numbers can be identified by
referencing the most current HTS in effect at the time of importation,
available at www.usitc.gov. The scope of yellowfin tuna embargoes and
procedures for attaining an affirmative finding are described under
paragraphs (f)(6) and (f)(8) of this section, respectively.
(A) Frozen: (products containing Yellowfin).
0303.42.0020 Yellowfin tunas, whole, frozen
0303.42.0040 Yellowfin tunas, head-on, frozen, except whole
0303.42.0060 Yellowfin tunas, other, frozen, except whole, head-on,
fillets, livers and roes
0304.87.0000 Tuna fish fillets, frozen, not elsewhere specified or
indicated (NESOI)
0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing
with their contents over 6.8 kg each
(B) Airtight Containers: (products containing Yellowfin)..............
1604.14.1010............................ Tunas and skipjack, in oil,
in airtight containers, in
foil or other flexible
containers weighing with
their contents not more
than 6.8 kg each
1604.14.1099............................ Tunas and skipjack, in oil,
in airtight containers,
NESOI
1604.14.2291............................ Other tunas and skipjack, no
oil, in foil/flexible
airtight containers, not
over 6.8 kg, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.2299............................ Tunas, NESOI and skipjack,
not in oil, in other
airtight containers not
over 7 kg, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.3091............................ Tunas and skipjack, NESOI,
not in oil, in foil or
other flexible airtight
containers, weighing with
their contents not more
than 6.8 kg each
1604.14.3099............................ Other tunas and skipjack,
not in oil, in airtight
containers, NESOI
(C) Loins: (products containing Yellowfin)............................
1604.14.4000............................ Tunas and skipjacks,
prepared or preserved, not
in airtight containers, not
in oil, in bulk or
immediate containers with
their contents over 6.8 kg
each
1604.14.5000............................ Tunas and skipjack, prepared
or preserved, not in
airtight containers, NESOI
[[Page 36]]
(D) Other: (products containing Yellowfin).
0511.91.0090 Fish, shellfish products unfit for human consumption
1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8
kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight
containers, in immediate containers weighing with their
contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(ii) Imports requiring a Fisheries Certificate of Origin, not
subject to yellowfin tuna embargo. All shipments containing tuna or tuna
products (other than fresh tuna or yellowfin tuna identified in
paragraph (f)(2)(i) of this section) imported into the United States
must be accompanied by an FCO, including, but not limited to, those
imported under the following HTS numbers. Updated HTS numbers can be
identified by referencing the most current HTS in effect at the time of
importation, available at www.usitc.gov.
(A) Frozen: (other than Yellowfin).
0303.41.0000 Albacore or longfinned tunas, frozen, except fillets,
livers and roes
0303.43.0000 Skipjack tunas or stripe-bellied bonito, frozen, except
fillets, livers and roes
0303.44.0000 Bigeye tunas, frozen, except fillets, livers and roes
0303.45.0110 Atlantic Bluefin, frozen, except fillets, livers and roes
0303.45.0150 Pacific Bluefin, frozen, except fillets, livers and roes
0303.46.0000 Southern bluefin tunas, frozen, except fillets, livers and
roes
0303.49.0200 Tunas, frozen, except fillets, livers and roes, NESOI
0304.87.0000 Tuna fish fillets, frozen, NESOI
0304.99.1190 Tuna, frozen, in bulk or in immediate containers weighing
with their contents over 6.8 kg each, NESOI
(B) Airtight Containers: (other than Yellowfin).......................
1604.14.1010............................ Tunas and skipjack, in oil,
in airtight containers, in
foil or other flexible
containers weighing with
their contents not more
than 6.8 kg each
1604.14.1091............................ Tunas, albacore, in oil, in
airtight containers, NESOI
1604.14.1099............................ Tunas and skipjack, in oil,
in airtight containers,
NESOI
1604.14.2251............................ Albacore tuna, not in oil,
in foil/flexible airtight
containers, weighing not
over 6.8 kg, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.2259............................ Albacore tuna, not in oil,
in airtight containers
weighing not over 7 kg,
NESOI, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.2291............................ Other tunas and skipjack, no
oil, in foil/flexible
airtight containers, not
over 6.8 kg, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.2299............................ Tunas, NESOI and skipjack,
not in oil, in other
airtight containers, not
over 7 kg, 4.8% of U.S.
consumption of canned tuna
during preceding year
1604.14.3051............................ Tuna, albacore not in oil,
in foil or other flexible
airtight containers,
weighing with contents not
more than 6.8 kg each,
NESOI
1604.14.3059............................ Tuna, albacore not in oil,
in airtight containers,
NESOI
1604.14.3091............................ Tunas and skipjack, NESOI,
not in oil, in foil or
other flexible airtight
containers, weighing with
their contents not more
than 6.8 kg each
1604.14.3099............................ Other tunas and skipjack,
not in oil, in airtight
containers, NESOI
(C) Loins: (other than Yellowfin).....................................
1604.14.4000............................ Tunas and skipjacks,
prepared or preserved, not
in airtight containers, not
in oil, in bulk or
immediate containers with
their contents over 6.8 kg
each
1604.14.5000............................ Tunas and skipjack, prepared
or preserved, not in
airtight containers, NESOI
(D) Other: (only if the product contains tuna).
0511.91.0090 Fish, shellfish products unfit for human consumption
1604.20.1000 Fish pastes
1604.20.1500 Fish balls, cakes and puddings, in oil
1604.20.2000 Fish balls, cakes and puddings, not in oil, less than 6.8
kg, in airtight containers
1604.20.2500 Fish balls, cakes and puddings, not in oil, not in airtight
containers, in immediate containers weighing with their
contents not over 6.8 kg each
1604.20.3000 Fish balls, cakes and puddings, NESOI
1604.20.4000 Fish sticks, not cooked, nor in oil
1604.20.5010 Fish sticks, cooked and frozen
1604.20.5090 Fish sticks, NESOI
2309.10.0010 Dog or cat food, in airtight containers
(iii) Exports from driftnet nations only, requiring a Fisheries
Certificate of Origin and official certification. The following HTS
numbers identify categories of
[[Page 37]]
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, including but not limited to those 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:
0303.11.0000 Sockeye (red) salmon (Oncorhynchus nerka), frozen, except
fillets, livers and roes
0303.12.0012 Chinook (King) salmon (Oncorhynchus tschawytscha), frozen,
except fillets, livers and roes
0303.12.0022 Chum (dog) salmon (Oncorhynchus keta), frozen, except
fillets, livers and roes
0303.12.0032 Pink (humpie) salmon (Oncorhynchus gorbuscha), frozen,
except fillets, livers and roes
0303.12.0052 Coho (silver) salmon (Oncorhynchus kisutch), frozen, except
fillets, livers and roes
0303.12.0062 Pacific salmon (Oncorhynchus masou, Oncorhynchus rhodurus),
frozen, except fillets, livers and roes, NESOI
0303.13.0000 Atlantic salmon (Salmo salar) and Danube salmon (Hucho
hucho), frozen, except fillets, livers and roes
0303.14.0000 Trout (Salmo trutta; Oncorhynchus mykiss, clarki,
aguabonita, gilae, apache, and chrysogaster), frozen, except
fillets, livers and roes
0303.19.0100 Salmonidae, frozen, except fillets, livers and roes, NESOI
0303.57.0010 Swordfish steaks, frozen, except fillets
0303.57.0090 Swordfish, frozen, except steaks, fillets, livers and roes
0303.81.0010 Dogfish (Squalus spp.), frozen, except fillets, livers and
roes
0303.81.0090 Sharks, frozen, except dogfish, fillets, livers and roes
0303.89.0079 Fish, other, frozen, except fillets, livers and roes, NESOI
0304.81.5010 Atlantic Salmonidae (Salmo salar) fillets, frozen, NESOI
0304.81.5090 Salmonidae fillets, frozen, except Atlantic salmon, NESOI
0304.89.1090 Fish fillets, skinned, frozen blocks weighing over 4.5 kg
each, to be minced, ground or cut into pieces of uniform
weights and dimensions, NESOI
0304.91.1000 Swordfish, frozen, in bulk or in immediate containers
weighing over 6.8 kg each
0304.91.9000 Swordfish, frozen, NESOI
0304.99.9191 Fish fillets, ocean, frozen, NESOI
0307.49.0010 Squid fillets, frozen
0307.49.0022 Squid, Loligo opalescens, NESOI
0307.49.0024 Squid, Loligo pealei, NESOI
0307.49.0029 Squid, Loligo, other, NESOI
0307.49.0050 Squid, other, NESOI
(B) Canned:
1604.11.2020 Pink (humpie) salmon, whole or in pieces, but not minced,
in oil, in airtight containers
1604.11.2030 Sockeye (red) salmon, whole or in pieces, but not minced,
in oil, in airtight containers
1604.11.2090 Salmon NESOI, whole or in pieces, but not minced, in oil,
in airtight containers
1604.11.4010 Chum (dog) salmon, not in oil, canned
1604.11.4020 Pink (humpie) salmon, not in oil, canned
1604.11.4030 Sockeye (red) salmon, not in oil, canned
1604.11.4040 Salmon, NESOI, not in oil, canned
1604.11.4050 Salmon, whole or in pieces, but not minced, NESOI
1604.19.2100 Fish, NESOI, not in oil, in airtight containers
1604.19.3100 Fish, NESOI, in oil, in airtight containers
1605.54.6020 Squid, Loligo, prepared or preserved
1605.54.6030 Squid, except Loligo, prepared or preserved
(C) Other:
0305.39.6080 Fish fillets, dried, salted or in brine, but not smoked,
NESOI
0305.41.0000 Pacific salmon (Oncorhynchus spp.), Atlantic salmon (Salmo
salar), and Danube salmon (Hucho hucho), including fillets,
smoked
0305.49.4041 Fish including fillets, smoked, NESOI
0305.59.0000 Fish, dried, whether or not salted but not smoked, NESOI
0305.69.4000 Salmon, salted but not dried or smoked; in brine
0305.69.5001 Fish in immediate containers weighing with their contents
6.8 kg or less each, salted but not dried or smoked; in brine,
NESOI
0305.69.6001 Fish, salted but not dried or smoked; in brine, NESOI
0305.71.0000 Shark fins, dried, whether or not salted but not smoked
0305.49.0010 Squid, frozen, fillets
0307.49.0022 Squid, Loligo opalescens, frozen (except fillets), dried,
salted or in brine
0307.49.0024 Squid, Loligo pealei, frozen (except fillets), dried,
salted or in brine
[[Page 38]]
0307.49.0029 Squid, Loligo, frozen (except fillets), dried, salted or in
brine, NESOI
0307.49.0050 Squid, other, frozen (except fillets), dried, salted or in
brine, except Loligo squid
0307.49.0060 Cuttle fish (Sepia officinalis, Rossia macrosoma, Sepiola
spp.), frozen, dried, salted or in brine
(3) Disposition of Fisheries Certificates of Origin. The FCO
described in paragraph (f)(4) of this section may be obtained from the
Administrator, West Coast Region, or downloaded from the Internet at
http://www.nmfs.noaa.gov/pr/dolphinsafe/noaa370.htm.
(i) A properly completed FCO, and its attached certifications and
statements as described in Sec. 216.91(a), must accompany the required
CBP entry documents that are filed at the time of, or in advance of,
importation.
(ii) FCOs and associated certifications and statements as described
in Sec. 216.91(a) must be provided electronically to CBP as indicated
in paragraph (f)(2) of this section.
(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, West Coast Region, by
the last endorser when all required endorsements are completed. Such
FCOs must be submitted as specified in Sec. 216.93(d)(2).
(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) CBP entry identification;
(ii) Date of entry;
(iii) Exporter's full name and complete address;
(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, north 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, pole and line/hook
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 as described in Sec. 216.91(a) if required;
(xiii) For shipments containing fish or fish products exported from,
or harvested on the high seas 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 large-scale driftnet nation, certifying that the fish or fish
products were harvested by a method other than large-scale driftnet; and
(xiv) Each 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
[[Page 39]]
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)).
(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
[[Page 40]]
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 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.
(ii) 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.
(iii) 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.
(iv) The Assistant Administrator will make or renew an affirmative
finding for the period from April 1 through
[[Page 41]]
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.
(v) 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 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 CBP 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 CBP supervision within 90 days shall be disposed of
under CBP 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
[[Page 42]]
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;
74 FR 1613, Jan. 13, 2009; 81 FR 36184, June 6, 2016; 81 FR 51132, Aug.
3, 2016]
Effective Date Note: At 81 FR 54413, Aug. 15, 2016, Sec. 216.24 was
amended by revising the section heading and adding paragraph (h),
effective Jan. 1, 2017. For the convenience of the user the revised and
added text are set forth as follows:
Sec. 216.24 Taking and related acts in commercial fishing operations
including tuna purse seine vessels in the eastern tropical
Pacific Ocean.
* * * * *
(h) Taking and related acts of marine mammals in foreign commercial
fishing operations not governed by the provisions related to tuna purse
seine vessels in the eastern tropical Pacific Ocean--(1) Prohibitions.
(i) As provided in section 101(a)(2) and 102(c)(3)of the MMPA, the
importation of commercial fish or fish products which have been caught
with commercial fishing technology which results in the incidental kill
or incidental serious injury of ocean mammals in excess of U.S.
standards or caught in a manner which the Secretary has proscribed for
persons subject to the jurisdiction of the United States are prohibited.
For purposes of paragraph (h) of this section, a fish or fish product
caught with commercial fishing technology which results in the
incidental mortality or incidental serious injury of marine mammals in
excess of U.S. standards is any fish or fish product harvested in an
exempt or export fishery for which a valid comparability finding is not
in effect.
(ii) Accordingly, it is unlawful for any person to import, or
attempt to import, into the United States for commercial purposes any
fish or fish product if such fish or fish product:
(A) Was caught or harvested in a fishery that does not have a valid
comparability finding in effect at the time of import; or
(B) Is not accompanied by a Certification of Admissibility where
such Certification is required pursuant to paragraph (h)(9)(iv) of this
section or by such other documentation as the Assistant Administrator
may identify and announce in the Federal Register that indicates the
fish or fish product was not caught or harvested in a fishery subject to
an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this
section.
(iii) It is unlawful for any person, including exporters,
transshippers, importers, processors, or wholesalers/distributors to
possess, sell, purchase, offer for sale, re-export, transport, or ship
in interstate or foreign commerce in the United States, any fish or fish
product imported in violation of paragraph (h) of this section.
(2) Exemptions. (i) Exempt fisheries are exempt from requirements of
paragraphs (h)(6)(iii)(B) through (E) of this section.
(A) For the purposes of paragraph (h) of this section, harvesting
nation means the country under whose flag or jurisdiction one or more
fishing vessels or other entity engaged in commercial fishing operations
are documented, or which has by formal declaration or agreement asserted
jurisdiction over one or more authorized or certified charter vessels,
and from such vessel(s) or entity(ies) fish are caught or harvested that
are a part of any cargo or shipment of fish or fish products to be
[[Page 43]]
imported into the United States, regardless of any intervening
transshipments, exports or re-exports.
(B) [Reserved]
(ii) The prohibitions of paragraph (h)(1) of this section shall not
apply during the exemption period.
(iii) Paragraph (h) of this section shall not apply to a commercial
fishing operation subject to section 101(a)(2)(B) of the MMPA and its
implementing regulations set out in the relevant provisions of paragraph
(f) of this section which govern the incidental take of delphinids in
course of commercial purse seine fishing operations for yellowfin tuna
in the eastern tropical Pacific Ocean and restrictions on importation
and sale of fish and fish products caught or harvested in that
commercial fishing operation. Paragraph (h) of this section shall not
apply with respect to large-scale driftnet fishing, which is governed by
paragraph (f)(7) of this section and the restrictions it sets out on
importation and sale of fish and fish products harvested by using a
large-scale driftnet.
(3) Procedures to identify foreign commercial fishing operations
with incidental mortality and serious injury of marine mammals as exempt
or export fisheries. In developing the List of Foreign Fisheries in
paragraph (h)(4) of this section, the Assistant Administrator:
(i) Shall periodically analyze imports of fish and fish products and
identify commercial fishing operations that are the source of exports of
such fish and fish products to the United States that have or may have
incidental mortality or serious injury of marine mammals in the course
of their commercial fishing operations.
(A) For the purposes of paragraph (h) of this section, a commercial
fishing operation means vessels or entities that catch, take, or harvest
fish (as defined in section 3 of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1802)) from the marine
environment (or other areas where marine mammals occur) that results in
the sale or barter of all or part of the fish caught, taken or
harvested. The term includes aquaculture activities that interact with
or occur in marine mammal habitat.
(B) [Reserved]
(ii) Shall notify, in consultation with the Secretary of State, each
harvesting nation that has commercial fishing operations identified
pursuant to paragraph (h)(3)(i) of this section and request that within
90 days of notification the harvesting nation submit reliable
information about the commercial fishing operations identified,
including as relevant the number of participants, number of vessels,
gear type, target species, area of operation, fishing season, any
information regarding the frequency of marine mammal incidental
mortality and serious injury and any programs (including any relevant
laws, decrees, regulations or measures) to assess marine mammal
populations and to reduce incidental mortality and serious injury of
marine mammals in those fisheries or prohibit the intentional killing or
injury of marine mammals.
(iii) Shall review each harvesting nation's submission, evaluate any
information it contains (including descriptions of its regulatory
programs) and, if necessary, request additional information.
(iv) May consider other readily available and relevant information
about such commercial fishing operations and the frequency of incidental
mortality and serious injury of marine mammals, including: fishing
vessel records; reports of on-board fishery observers; information from
off-loading facilities, port-side officials, enforcement agents and
officers, transshipment vessel workers and fish importers; government
vessel registries; regional fisheries management organizations documents
and statistical document programs; and appropriate certification
programs. Other sources may include published literature and reports on
fishing vessels with incidental mortality and serious injury of marine
mammals from government agencies; foreign, state, and local governments;
regional fishery management organizations; nongovernmental
organizations; industry organizations; academic institutions; and
citizens and citizen groups.
(4) List of Foreign Fisheries. (i) Within one year of January 1,
2017, and the year prior to the expiration of the exemption period and
every four years
[[Page 44]]
thereafter, the Assistant Administrator, based on the information
obtained in paragraph (h)(3) of this section, will publish in the
Federal Register:
(A) A proposed List of Foreign Fisheries by harvesting nation for
notice and comment; and
(B) A final List of Foreign Fisheries, effective upon publication in
the Federal Register.
(ii) To the extent that information is available, the List of
Foreign Fisheries shall:
(A) Classify each commercial fishing operation that is the source of
exports of fish and fish products to the United States based on the
definitions for export fishery and exempt fishery set forth in Sec.
216.3 and identified in the List of Foreign Fisheries by harvesting
nation and other defining factors including geographic location of
harvest, gear-type, target species or a combination thereof;
(B) Include fishing gear type, target species, and number of vessels
or other entities engaged in each commercial fishing operation;
(C) List the marine mammals that interact with each commercial
fishing operation and indicate the level of incidental mortality and
serious injury of marine mammals in each commercial fishing operation;
(D) Provide a description of the harvesting nation's programs to
assess marine mammal stocks and estimate and reduce marine mammal
incidental mortality and serious injury in its export fisheries; and
(E) List the harvesting nations that prohibit, in the course of
commercial fishing operations that are the source of exports to the
United States, the intentional mortality or serious injury of marine
mammals unless the intentional mortality or serious injury of a marine
mammal is imminently necessary in self-defense or to save the life of a
person in immediate danger.
(5) Consultations with Harvesting Nations with Commercial Fishing
Operations on the List of Foreign Fisheries. (i) Within 90 days of
publication of the final List of Foreign Fisheries in the Federal
Register, the Assistant Administrator, in consultation with the
Secretary of State, shall consult with harvesting nations with
commercial fishing operations identified as export or exempt fisheries
as defined in Sec. 216.3 for purposes of notifying the harvesting
nation of the requirements of the Marine Mammal Protection Act and this
subpart.
(ii) The Assistant Administrator, in consultation with the Secretary
of State, may consult with harvesting nations for the purposes of
providing notifications of deadlines under this section, ascertaining or
reviewing the progress of the harvesting nation's development, adoption,
implementation, or enforcement of its regulatory program governing the
incidental mortality and serious injury of marine mammals in the course
of commercial fishing operations for an export fishery, supplementing or
clarifying information needed in conjunction with the List of Foreign
Fisheries in paragraphs (h)(3) and (4) of this section, the progress
report in paragraph (h)(10) of this section or an application for or
reconsideration of a comparability finding in paragraphs (h)(6) and (8)
of this section.
(iii) The Assistant Administrator shall, in consultation with the
Secretary of State and the United States Trade Representative, consult
with any harvesting nations that failed to receive a comparability
finding for one or more of commercial fishing operations or for which a
comparability finding is terminated and encourage the harvesting nation
to take corrective action and reapply for a comparability finding in
accordance with paragraph (h)(9)(iii) of this section.
(6) Procedure and conditions for a comparability finding--(i)
Procedures to apply for a comparability finding. On March 1st of the
year when the exemption period or comparability finding is to expire, a
harvesting nation shall submit to the Assistant Administrator an
application for each of its export and exempt fisheries, along with
documentary evidence demonstrating that the harvesting nation has met
the conditions specified in paragraph (h)(6)(iii) of this section for
each of such fishery, including reasonable proof as to the effects on
marine mammals of the commercial fishing technology in use in
[[Page 45]]
the fishery for fish or fish products exported from such nation to the
United States. The Assistant Administrator may request the submission of
additional supporting documentation or other verification of statements
made in an application for a comparability finding.
(ii) Procedures to issue a comparability finding. No later than
November 30th of the year when the exemption period or comparability
finding is to expire, the Assistant Administrator, in response to an
application from a harvesting nation for an export or exempt fishery,
shall determine whether to issue to the harvesting nation, in accordance
with the procedures set forth in paragraph (h)(8) of this section, a
comparability finding for the fishery. In making this determination, the
Assistant Administrator shall consider documentary evidence provided by
the harvesting nation and relevant information readily available from
other sources. If a harvesting nation provides insufficient documentary
evidence in support of its application, the Assistant Administrator
shall draw reasonable conclusions regarding the fishery based on readily
available and relevant information from other sources, including where
appropriate information concerning analogous fisheries that use the same
or similar gear-type under similar conditions as the fishery, in
determining whether to issue the harvesting nation a comparability
finding for the fishery.
(iii) Conditions for a comparability finding. The following are
conditions for the Assistant Administrator to issue a comparability
finding for the fishery, subject to the additional considerations set
out in paragraph (h)(7) of this section:
(A) For an exempt or export fishery, the harvesting nation:
(1) Prohibits the intentional mortality or serious injury of marine
mammals in the course of commercial fishing operations in the fishery
unless the intentional mortality or serious injury of a marine mammal is
imminently necessary in self-defense or to save the life of a person in
immediate danger; or
(2) Demonstrates that it has procedures to reliably certify that
exports of fish and fish products to the United States are not the
product of an intentional killing or serious injury of a marine mammal
unless the intentional mortality or serious injury of a marine mammal is
imminently necessary in self-defense or to save the life of a person in
immediate danger; and
(B) For an export fishery, the harvesting nation maintains a
regulatory program with respect to the fishery that is comparable in
effectiveness to the U.S. regulatory program with respect to incidental
mortality and serious injury of marine mammals in the course of
commercial fishing operations, in particular by maintaining a regulatory
program that includes, or effectively achieves comparable results as,
the conditions in paragraph (h)(6)(iii)(C), (D), or (E) of this section
as applicable (including for transboundary stocks).
(C) Conditions for an export fishery operating under the
jurisdiction of a harvesting nation within its EEZ (or the equivalent)
or territorial sea. In making the finding in paragraph (h)(6)(ii) of
this section, with respect to an export fishery operating under the
jurisdiction of a harvesting nation within its EEZ (or the equivalent)
or territorial sea, the Assistant Administrator shall determine whether
the harvesting nation maintains a regulatory program that provides for,
or effectively achieves comparable results as, the following:
(1) Marine mammal assessments that estimate population abundance for
marine mammal stocks in waters under the harvesting nation's
jurisdiction that are incidentally killed or seriously injured in the
export fishery.
(2) An export fishery register containing a list of all fishing
vessels participating in the export fishery, including information on
the number of vessels participating, the time or season and area of
operation, gear type and target species.
(3) Regulatory requirements that include:
(i) A requirement for the owner or operator of a vessel
participating in the export fishery to report all intentional and
incidental mortality and injury of marine mammals in the course of
commercial fishing operations; and
[[Page 46]]
(ii) A requirement to implement measures in the export fishery
designed to reduce the total incidental mortality and serious injury of
a marine mammal stock below the bycatch limit; and
(iii) with respect to any transboundary stock or any other marine
mammal stocks interacting with the export fishery, measures to reduce
the incidental mortality and serious injury of that stock that the
United States requires its domestic fisheries to take with respect to
that transboundary stock or marine mammal stock.
(4) Implementation of monitoring procedures in the export fishery
designed to estimate incidental mortality or serious injury in the
export fishery, and to estimate the cumulative incidental mortality and
serious injury of marine mammal stocks in waters under its jurisdiction
resulting from the export fishery and other export fisheries interacting
with the same marine mammal stocks, including an indication of the
statistical reliability of those estimates.
(5) Calculation of bycatch limits for marine mammal stocks in waters
under its jurisdiction that are incidentally killed or seriously injured
in the export fishery.
(6) Comparison of the incidental mortality and serious injury of
each marine mammal stock or stocks that interact with the export fishery
in relation to the bycatch limit for each stock; and comparison of the
cumulative incidental mortality and serious injury of each marine mammal
stock or stocks that interact with the export fishery and any other
export fisheries of the harvesting nation showing that these export
fisheries:
(i) Do not exceed the bycatch limit for that stock or stocks; or
(ii) Exceed the bycatch limit for that stock or stocks, but the
portion of incidental marine mammal mortality or serious injury for
which the export fishery is responsible is at a level that, if the other
export fisheries interacting with the same marine mammal stock or stocks
were at the same level, would not result in cumulative incidental
mortality and serious injury in excess of the bycatch limit for that
stock or stocks.
(D) Conditions for a harvesting nation's export fishery operating
within the jurisdiction of another state. In making the finding in
paragraph (h)(6)(ii) of this section, with respect to a harvesting
nation's export fishery operating within the jurisdiction of another
state, the Assistant Administrator shall determine whether the
harvesting nation maintains a regulatory program that provides for, or
effectively achieves comparable results as, the following:
(1) Implementation in the export fishery of:
(i) With respect to any transboundary stock interacting with the
export fishery, any measures to reduce the incidental mortality and
serious injury of that stock that the United States requires its
domestic fisheries to take with respect that transboundary stock; and
(ii) With respect to any other marine mammal stocks interacting with
the export fishery while operating within the jurisdiction of the state,
any measures to reduce incidental mortality and serious injury that the
United States requires its domestic fisheries to take with respect to
that marine mammal stock; and
(2) For an export fishery not subject to management by a regional
fishery management organization:
(i) An assessment of marine mammal abundance of stocks interacting
with the export fishery, the calculation of a bycatch limit for each
such stock, an estimation of incidental mortality and serious injury for
each stock and reduction in or maintenance of the incidental mortality
and serious injury of each stock below the bycatch limit. This data
included in the application may be provided by the state or another
source; and
(ii) Comparison of the incidental mortality and serious injury of
each marine mammal stock or stocks that interact with the export fishery
in relation to the bycatch limit for each stock; and comparison of the
cumulative incidental mortality and serious injury of each marine mammal
stock or stocks that interact with the export fishery and any other
export fisheries of the harvesting nation showing that
[[Page 47]]
these export fisheries do not exceed the bycatch limit for that stock or
stocks; or exceed the bycatch limit for that stock or stocks, but the
portion of incidental marine mammal mortality or serious injury for
which the export fishery is responsible is at a level that, if the other
export fisheries interacting with the same marine mammal stock or stocks
were at the same level, would not result in cumulative incidental
mortality and serious injury in excess of the bycatch limit for that
stock or stocks; or
(3) For an export fishery that is subject to management by a
regional fishery management organization, implementation of marine
mammal data collection and conservation and management measures
applicable to that fishery required under any applicable
intergovernmental agreement or regional fisheries management
organization to which the United States is a party.
(E) Conditions for a harvesting nation's export fishery operating on
the high seas under the jurisdiction of the harvesting nation or another
state. In making the finding in paragraph (h)(6)(ii) of this section,
with respect to a harvesting nation's export fishery operating on the
high seas under the jurisdiction of the harvesting nation or another
state, the Assistant Administrator shall determine whether the
harvesting nation maintains a regulatory program that provides for, or
effectively achieves comparable results as, the U.S. regulatory program
with respect to the following:
(1) Implementation in the fishery of marine mammal data collection
and conservation and management measures applicable to that fishery
required under any applicable intergovernmental agreement or regional
fisheries management organization to which the United States is a party;
and
(2) Implementation in the export fishery of:
(i) With respect to any transboundary stock interacting with the
export fishery, any measures to reduce the incidental mortality and
serious injury of that stock that the United States requires its
domestic fisheries to take with respect that transboundary stock; and
(ii) With respect to any other marine mammal stocks interacting with
the export fishery while operating on the high seas, any measures to
reduce incidental mortality and serious injury that the United States
requires its domestic fisheries to take with respect to that marine
mammal stock when they are operating on the high seas.
(7) Additional considerations for comparability finding
determinations. When determining whether to issue any comparability
finding for a harvesting nation's export fishery the Assistant
Administrator shall also consider:
(i) U.S. implementation of its regulatory program for similar marine
mammal stocks and similar fisheries (e.g., considering gear or target
species), including transboundary stocks governed by regulations
implementing a take reduction plan (Sec. 229.2 of this chapter), and
any other relevant information received during consultations;
(ii) The extent to which the harvesting nation has successfully
implemented measures in the export fishery to reduce the incidental
mortality and serious injury of marine mammals caused by the harvesting
nation's export fisheries to levels below the bycatch limit;
(iii) Whether the measures adopted by the harvesting nation for its
export fishery have reduced or will likely reduce the cumulative
incidental mortality and serious injury of each marine mammal stock
below the bycatch limit, and the progress of the regulatory program
toward achieving its objectives;
(iv) Other relevant facts and circumstances, which may include the
history and nature of interactions with marine mammals in this export
fishery, whether the level of incidental mortality and serious injury
resulting from the fishery or fisheries exceeds the bycatch limit for a
marine mammal stock, the population size and trend of the marine mammal
stock, and the population level impacts of the incidental mortality or
serious injury of marine mammals in a harvesting nation's export
fisheries and the conservation status of those marine mammal stocks
where available;
(v) The record of consultations under paragraph (h)(5) of this
section with
[[Page 48]]
the harvesting nation, results of these consultations, and actions taken
by the harvesting nation and under any applicable intergovernmental
agreement or regional fishery management organization to reduce the
incidental mortality and serious injury of marine mammals in its export
fisheries;
(vi) Information gathered during onsite inspection by U.S.
government officials of a fishery's operations;
(vii) For export fisheries operating on the high seas under an
applicable intergovernmental agreement or regional fishery management
organization to which the United States is a party, the harvesting
nation's record of implementation of or compliance with measures adopted
by that regional fishery management organization or intergovernmental
agreement for data collection, incidental mortality and serious injury
mitigation or the conservation and management of marine mammals; whether
the harvesting nation is a party or cooperating non-party to such
intergovernmental agreement or regional fishery management organization;
the record of United States implementation of such measures; and whether
the United States has imposed additional measures on its fleet not
required by an intergovernmental agreement or regional fishery
management organization; or
(viii) For export fisheries operating on the high seas under an
applicable intergovernmental agreement or regional fisheries management
organization to which the United States is not a party, the harvesting
nation's implementation of and compliance with measures, adopted by that
regional fisheries management organization or intergovernmental
agreement, and any additional measures implemented by the harvesting
nation for data collection, incidental mortality and serious injury
mitigation or the conservation and management of marine mammals and the
extent to which such measures are comparable in effectiveness to the
U.S. regulatory program for similar fisheries.
(8) Comparability finding determinations--(i) Publication. No later
than November 30th of the year when the exemption period or
comparability finding is to expire, the Assistant Administrator shall
publish in the Federal Register, by harvesting nation, a notice of the
harvesting nations and fisheries for which it has issued or denied a
comparability finding and the specific fish and fish products that as a
result are subject to import prohibitions under paragraphs (h)(1) and
(9) of this section.
(ii) Notification. Prior to publication in the Federal Register, the
Assistant Administrator, in consultation with the Secretary of State
and, in the event of a denial of a comparability finding, with the
Office of the U.S. Trade Representative, shall notify each harvesting
nation in writing of the fisheries of the harvesting nation for which
the Assistant Administrator is:
(A) Issuing a comparability finding;
(B) Denying a comparability finding with an explanation for the
reasons for the denial of such comparability finding; and
(C) Specify the fish and fish products that will be subject to
import prohibitions under paragraphs (h)(1) and (9) of this section on
account of a denial of a comparability finding and the effective date of
such import prohibitions.
(iii) Preliminary comparability finding consultations. (A) Prior to
denying a comparability finding under paragraph (h)(8)(ii) of this
section or terminating a comparability finding under paragraph
(h)(8)(vii) of this section, the Assistant Administrator shall:
(1) Notify the harvesting nation that it is preliminarily denying or
terminating its comparability finding and explain the reasons for that
preliminary denial or termination;
(2) Provide the harvesting nation a reasonable opportunity to submit
reliable information to refute the preliminary denial or termination of
the comparability finding and communicate any corrective actions it is
taking to meet the applicable conditions for a comparability finding set
out in paragraph (h)(6)(iii) of this section subject to the additional
considerations set out in paragraph (h)(7) of this section.
(B) The Assistant Administrator shall take into account any
information it receives from the harvesting nation and issue a final
comparability finding determination, notifying the
[[Page 49]]
harvesting nation pursuant to paragraph (h)(8)(ii) of this section of
its determination and, if a denial or termination, an explanation of the
reasons for the denial or termination of the comparability finding.
(C) A preliminary denial or termination of a comparability finding
shall not result in import prohibitions pursuant to paragraphs (h)(1)
and (9) of this section.
(iv) Duration of a comparability finding. Unless terminated in
accordance with paragraph (h)(8)(vii) of this section or issued for a
specific period pursuant to a re-application under paragraph (h)(9)(iii)
of this section, a comparability finding shall remain valid for 4 years
from publication or for such other period as the Assistant Administrator
may specify.
(v) Renewal of comparability finding. To seek renewal of a
comparability finding, every 4 years or prior to the expiration of a
comparability finding, the harvesting nation must submit to the
Assistant Administrator the application and the documentary evidence
required pursuant to paragraph (h)(6)(i) of this section, including,
where applicable, reasonable proof as to the effects on marine mammals
of the commercial fishing technology in use in the fishery for fish or
fish products exported to the United States, by March 1 of the year when
its current comparability finding is due to expire.
(vi) Procedures for a comparability finding for new foreign
commercial fishing operations wishing to export to the United States.
(A) For foreign commercial fishing operations not on the List of Foreign
Fisheries that are the source of new exports to the United States, the
harvesting nation must notify the Assistant Administrator that the
commercial fishing operation wishes to export fish and fish products to
the United States.
(B) Upon notification the Assistant Administrator shall issue a
provisional comparability finding allowing such imports for a period not
to exceed 12 months.
(C) At least 120 days prior to the expiration of the provisional
comparability finding the harvesting nation must submit to the Assistant
Administrator the reliable information specified in paragraph (h)(3)(ii)
of this section and the application and the applicable documentary
evidence required pursuant to paragraph (h)(6)(i) of this section.
(D) Prior to expiration of the provisional comparability finding,
the Assistant Administrator shall review the application and information
provided and classify the commercial fishing operation as either an
exempt or export fishery in accordance with paragraphs (h)(3)(iii)
through (iv) and (h)(4)(ii) of this section and determine whether to
issue the harvesting nation a comparability finding for the fishery in
accordance with paragraph (h)(6)(ii) through (iii) of this section.
(E) If the harvesting nation submits the reliable information
specified in paragraph (h)(3)(ii) of this section at least 180 days
prior to expiration of the provisional comparability finding, the
Assistant Administrator will review that information and classify the
fishery as either an exempt or export fishery.
(vii) Discretionary review of comparability findings. (A) The
Assistant Administrator may reconsider a comparability finding that it
has issued at any time based upon information obtained by the Assistant
Administrator including any progress report received from a harvesting
nation; or upon request with the submission of information from the
harvesting nation, any nation, regional fishery management
organizations, nongovernmental organizations, industry organizations,
academic institutions, citizens or citizen groups that the harvesting
nation's exempt or export fishery no longer meets the applicable
conditions in paragraph (h)(6)(iii) of this section. Upon receiving a
request, the Assistant Administrator has the discretion to determine
whether to proceed with a review or reconsideration.
(B) After such review or reconsideration and consultation with the
harvesting nation, the Assistant Administrator shall, if the Assistant
Administrator determines that the basis for the comparability finding no
longer applies, terminate a comparability finding.
(C) The Assistant Administrator shall notify in writing the
harvesting
[[Page 50]]
nation and publish in the Federal Register a notice of the termination
and the specific fish and fish products that as a result are subject to
import prohibitions under paragraphs (h)(1) and (9) of this section.
(9) Imposition of import prohibitions. (i) With respect to a
harvesting nation for which the Assistant Administrator has denied or
terminated a comparability finding for a fishery, the Assistant
Administrator, in cooperation with the Secretaries of the Treasury and
Homeland Security, shall identify and prohibit the importation of fish
and fish products into the United States from the harvesting nation
caught or harvested in that fishery. Any such import prohibition shall
become effective 30 days after the of publication of the Federal
Register notice referenced in paragraph (h)(8)(i) of this section and
shall only apply to fish and fish products caught or harvested in that
fishery.
(ii) Duration of import restrictions and removal of import
restrictions. (A) Any import prohibition imposed pursuant to paragraphs
(h)(1) and (9) of this section with respect to a fishery shall remain in
effect until the Assistant Administrator issues a comparability finding
for the fishery.
(B) A harvesting nation with an export fishery with a comparability
finding that expired, was denied or terminated may re-apply for a
comparability finding at any time by submitting an application to the
Assistant Administrator, along with documentary evidence demonstrating
that the harvesting nation has met the conditions specified in paragraph
(h)(6)(iii) of this section, including, as applicable, reasonable proof
as to the effects on marine mammals of the commercial fishing technology
in use in the fishery for the fish or fish products exported from such
nation to the United States.
(C) The Assistant Administrator shall make a determination whether
to issue the harvesting nation that has re-applied for a comparability
finding for the fishery within 90 days from the submission of complete
information to the Assistant Administrator. The Assistant Administrator
shall issue a comparability finding for the fishery for a specified
period where the Assistant Administrator finds that the harvesting
nation meets the applicable conditions in paragraph (h)(6)(iii) of this
section, subject to the additional consideration for a comparability
finding in paragraph (h)(7) of this section.
(D) Upon issuance of a comparability finding to the harvesting
nation with respect to the fishery and notification in writing to the
harvesting nation, the Assistant Administrator, in cooperation with the
Secretaries of Treasury and Homeland Security, shall publish in the
Federal Register a notice of the comparability finding and the removal
of the corresponding import prohibition effective on the date of
publication in the Federal Register.
(iii) Certification of admissibility. (A) If fish or fish products
are subject to an import prohibition under paragraphs (h)(1) and (9) of
this section, the Assistant Administrator, to avoid circumvention of the
import prohibition, may require that the same or similar fish and fish
products caught or harvested in another fishery of the harvesting nation
and not subject to the prohibition be accompanied by a certification of
admissibility by paper or electronic equivalent filed through the
National Marine Fisheries Service message set required in the
International Trade Data System. No certification of admissibility shall
be required for a fish product for which it is infeasible to
substantiate the attestation that the fish or fish products do not
contain fish or fish products caught or harvested in a fishery subject
to an import prohibition. The certification of admissibility may be in
addition to any other applicable import documentation requirements.
(B) The Assistant Administrator shall notify the harvesting nation
of the fisheries and the fish and fish products to be accompanied by a
certification of admissibility and provide the necessary documents and
instruction.
(C) The Assistant Administrator, in cooperation with the Secretaries
of Treasury and Homeland Security, shall as part of the Federal Register
notice referenced in paragraph (h)(8)(i) of this section, publish a list
of fish and fish products, organized by harvesting nation, required to
be accompanied by a
[[Page 51]]
certification of admissibility. Any requirement for a certification of
admissibility shall be effective 30 days after the publication of such
notice in the Federal Register.
(D) For each shipment, the certification of admissibility must be
properly completed and signed by a duly authorized official or agent of
the harvesting nation and subject to validation by a responsible
official(s) designated by the Assistant Administrator. The certification
must also be signed by the importer of record and submitted in a format
(electronic facsimile [fax], the Internet, etc.) specified by the
Assistant Administrator.
(iv) Intermediary nation. (A) For purposes of this paragraph (h)(9),
and in applying the definition of an ``intermediary nation,'' an import
into the intermediary nation occurs when the fish or fish product is
released from a harvesting nation's customs jurisdiction and enters the
customs jurisdiction of the intermediary nation or when the fish and
fish products are entered into a foreign trade zone of the intermediary
nation for processing or transshipment. For other purposes, ``import''
is defined in Sec. 216.3.
(B) No fish or fish products caught or harvested in a fishery
subject to an import prohibition under paragraphs (h)(1) and (9) of this
section, may be imported into the United States from any intermediary
nation.
(C) Within 30 days of publication of the Federal Register notice
described in paragraph (h)(8)(i) of this section specifying fish and
fish products subject to import prohibitions under paragraphs (h)(1) and
(9) of this section, the Assistant Administrator shall, based on readily
available information, identify intermediary nations that may import,
and re-export to the United States, fish and fish products from a
fishery subject to an import prohibition under paragraphs (h)(1) and
(h)(9)(i) of this section and notify such nations in writing that they
are subject to action under paragraph (h)(9)(iv)(D) of this section with
respect to the fish and fish products for which the Assistant Administer
identified them.
(D) Within 60 days from the date of notification, an intermediary
nation notified pursuant to paragraph (h)(9)(iv)(C) of this section must
certify to the Assistant Administrator that it:
(1) Does not import, or does not offer for import into the United
States, fish or fish products subject to an import prohibition under
paragraphs (h)(1) and (h)(9)(i) of this section; or
(2) Has procedures to reliably certify that exports of fish and fish
products from the intermediary nation to the United States do not
contain fish or fish products caught or harvested in a fishery subject
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this
section.
(E) The intermediary nation must provide documentary evidence to
support its certification including information demonstrating that:
(1) It has not imported in the preceding 6 months the fish and fish
products for which it was notified under paragraph (h)(9)(iv)(C) of this
section; or
(2) It maintains a tracking, verification, or other scheme to
reliably certify on either a global, individual shipment or other
appropriate basis that fish and fish products from the intermediary
nation offered for import to the United States do not contain fish or
fish products caught or harvested in a fishery subject to an import
prohibition under paragraphs (h)(1) and (h)(9)(i) of this section and
for which it was notified under paragraph (h)(9)(iv)(C) of this section.
(F) No later than 120 days after a notification pursuant to
paragraph (h)(9)(iv)(C) of this section, the Assistant Administrator
will review the documentary evidence provided by the intermediary nation
under paragraphs (h)(9)(iv)(D) and (E) of this section and determine
based on that information or other readily available information whether
the intermediary nation imports, or offers to import into the United
States, fish and fish products subject import prohibitions and, if so,
whether the intermediary nation has procedures to reliably certify that
exports of fish and fish products from the intermediary nation to the
United States do not contain fish or fish products subject to import
prohibitions under paragraphs (h)(1) and (9) of this
[[Page 52]]
section, and notify the intermediary nation of its determination.
(G) If the Assistant Administrator determines that the intermediary
nation does not have procedures to reliably certify that exports of fish
and fish products from the intermediary nation to the United States do
not contain fish or fish products caught or harvested in a fishery
subject to an import prohibition under paragraphs (h)(1) and (h)(9)(i)
of this section, the Assistant Administrator, in cooperation with the
Secretaries of the Treasury and Homeland Security, will file with the
Office of the Federal Register a notice announcing the fish and fish
products exported from the intermediary nation to the United States that
are of the same species as, or similar to, fish or fish products subject
to an import prohibition under paragraphs (h)(1) and (h)(9)(i) of this
section that may not be imported into the United States as a result of
the determination. A prohibition under this paragraph shall not apply to
any fish or fish product for which the intermediary nation was not
identified under paragraph (h)(9)(iv)(C) of this section.
(H) The Assistant Administrator will review determinations 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.
Based upon such information and other relevant information, the
Assistant Administrator may determine that the intermediary nation
should no longer be subject to an import prohibition under paragraph
(h)(9)(iv)(G) of this section. If the Assistant Administrator makes such
a determination, the Assistant Administrator, in cooperation with the
Secretaries of the Treasury and Homeland Security, shall lift the import
prohibition under this paragraph and publish notification of such action
in the Federal Register.
(10) Progress report for harvesting nations with export fisheries.
(i) A harvesting nation shall submit, with respect to an exempt or
export fishery, a progress report to the Assistant Administrator
documenting actions taken to:
(A) Develop, adopt and implement its regulatory program; and
(B) Meet the conditions in paragraph (h)(6)(iii) of this section,
including with respect to reducing or maintaining incidental mortality
and serious injury of marine mammals below the bycatch limit for its
fisheries.
(ii) The progress report should include the methods the harvesting
nation is using to obtain information in support of a comparability
finding and a certification by the harvesting nation of the accuracy and
authenticity of the information contained in the progress report.
(iii) The first progress report will be due two years prior to the
end of exemption period and every four years thereafter on or before
July 31.
(iv) The Assistant Administrator may review the progress report to
monitor progress made by a harvesting nation in developing its
regulatory program or to reconsider a comparability finding in
accordance with paragraph (h)(8)(vi) of this section.
(11) International cooperation and assistance. Consistent with the
authority granted under Marine Mammal Protection Act at 16 U.S.C. 1378
and the availability of funds, the Assistant Administrator may:
(i) Provide appropriate assistance to harvesting nations identified
by the Assistant Administrator under paragraph (h)(5) of this section
with respect to the financial or technical means to develop and
implement the requirements of this section;
(ii) Undertake, where appropriate, cooperative research on marine
mammal assessments for abundance, methods to estimate incidental
mortality and serious injury and technologies and techniques to reduce
marine mammal incidental mortality and serious injury in export
fisheries;
(iii) Encourage and facilitate, as appropriate, the voluntary
transfer of appropriate technology on mutually agreed terms to assist
harvesting nations in qualifying for a comparability finding under
paragraph (h)(6) of this section; and
[[Page 53]]
(iv) Initiate, through the Secretary of State, negotiations for the
development of bilateral or multinational agreements with harvesting
nations to conserve marine mammals and reduce the incidental mortality
and serious injury of marine mammals in the course of commercial fishing
operations.
(12) Consistency with international obligations. The Assistant
Administrator shall ensure, in consultation with the Department of State
and the Office of the United States Trade Representative that any action
taken under this section, including any action to deny a comparability
finding or to prohibit imports, is consistent with the international
obligations of the United States, including under the World Trade
Organization Agreement.
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 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;
[[Page 54]]
(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;
(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
[[Page 55]]
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 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]
[[Page 56]]
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.
(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
[[Page 57]]
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 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;
[[Page 58]]
(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:
(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
[[Page 59]]
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;
(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
[[Page 60]]
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, 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
[[Page 61]]
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.
(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.
[[Page 62]]
(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:
(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:
[[Page 63]]
(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 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
[[Page 64]]
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 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;
[[Page 65]]
(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:
(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
[[Page 66]]
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 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
[[Page 67]]
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 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
[[Page 68]]
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 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
[[Page 69]]
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 subsistence fur seal harvests.
(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 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)[Reserved]
(d) St. George Island. The subsistence fur seal harvest restrictions
described in paragraphs (d)(1) through (d)(5) of this section apply
exclusively to the harvest of sub-adult fur seals; restrictions that
apply exclusively to the harvest of young of the year fur seals can be
found in paragraphs (d)(6) through (d)(11) of this section.
(1) Pribilovians may only harvest sub-adult male fur seals 124.5
centimeters or less in length from June 23 through August 8 annually on
St. George Island up to the lower end of the harvest range established
in paragraph (b) of this section. When the lower end of the range has
been reached paragraphs (f)(1)(iii) and (f)(3) of this section apply.
(2) Pribilovians may harvest sub-adult male fur seals at the hauling
grounds shown in Figure 1 to part 216. No hauling ground may be
harvested more than twice per week.
(3) Seals with tags and/or entangling debris may only be taken if so
directed by NMFS scientists.
(4) The scheduling of the sub-adult male 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. 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 sub-adult male fur seals to killing
fields, unless the NMFS representatives determine, 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.
(5) Any taking of adult fur seals or young of the year, or the
intentional taking of sub-adult female fur seals is prohibited.
(6) Pribilovians may only harvest male young of the year from
September 16 through November 30 annually on St. George Island.
Pribilovians may harvest up to 150 male fur seal young of the year
annually up to the lower end of the harvest range established for St.
George in the notice published pursuant to paragraph (b) of this
[[Page 70]]
section. When the lower end of the harvest range has been reached
paragraphs (f)(1)(iii) and (f)(3) of this section apply.
(7) No more than 50 male young of the year may be harvested from
each of the following regions where fur seals congregate: East region
includes the breeding areas known as East Reef and East Cliffs rookeries
and the associated non-breeding hauling grounds; South region includes
the breeding areas known as Zapadni and South rookeries and the
associated non-breeding hauling grounds; and North region includes the
breeding areas known as North and Staraya Artil rookeries and associated
non-breeding hauling grounds, as shown in Figure 1 to part 216. No area
may be harvested more than twice per week and must be in accordance with
paragraph (d)(10) of this section.
(8) The scheduling of the young of the year harvest is at the
discretion of the Pribilovians, but must be such as to minimize stress
to the harvested and un-harvested fur seals and minimize the take of
female fur seals. The Pribilovians must give adequate advance notice of
their harvest schedules to the NMFS representatives to allow for
necessary monitoring activities. No fur seal may be taken except by
sealers using the harvesting methods implemented to reduce disturbance,
injury, and accidental mortality of female fur seals. Pribilovians may
use, but are not limited to, organized drives of young of the year fur
seals from congregating areas to inland killing fields. Methods of
harvest must include identification of male young of the year, followed
by stunning and immediate exsanguination, unless the NMFS
representatives, in consultation with the Pribilovians conducting the
harvest, determine that alternative methods will not result in increased
stress to harvested and un-harvested fur seals, increased disturbance or
injury to resting fur seals, or the accidental mortality of female
seals.
(9) Any harvest of sub adult or adult fur seals or intentional
harvest of young of the year female fur seals is prohibited.
(10) No young of the year fur seals may be taken from any designated
breeding area or its associated hauling ground(s) where the most recent
NMFS analysis projects that pup production has greater than a 5 percent
probability of falling below a level capable of sustaining a harvest in
10 years.
(11) No more than 120 days after the final subsistence harvest each
calendar year, NMFS representatives and St. George Island community
members must review the implementation of the harvest and consider best
harvest practices and determine if implementation can be improved to
better meet the subsistence needs of the St. George Island community or
reduce negative effects on fur seals.
(e) 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.
(1) The scheduling of the harvest is at the discretion of the
Pribilovians, but must be such as to minimize stress to the harvested
fur seals. The Pribilovians must give adequate advance notice of their
harvest schedules to the NMFS representatives to allow for necessary
monitoring activities.
(2) No fur seal may be taken on the Pribilof Islands before June 23
of each year.
(3) 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.
(4) Any taking of adult fur seals or pups, or the intentional taking
of subadult female fur seals is prohibited.
(5) Only subadult male fur seals 124.5 centimeters or less in length
may be taken.
(6) Seals with tags and/or entangling debris may only be taken if so
directed by NMFS scientists.
(f) Harvest suspension provisions. (1) The Assistant Administrator
is required to suspend the take provided for in Sec. Sec. 216.71 and
216.72 when:
[[Page 71]]
(i) (S)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) (S)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; or
(iv) With regard to St. George Island, two female fur seals have
been killed on St. George Island.
(2) A suspension based on a determination under paragraph (f)(1)(ii)
of this section may be lifted by the Assistant Administrator if (s)he
finds that the conditions that 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 (f)(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 (f)(1)(i) of this section is warranted. If the harvest
is not suspended under paragraph (f)(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.
(4) A suspension based on a determination under paragraph (f)(1)(iv)
of this section may be lifted by the Assistant Administrator if (s)he
finds that the conditions that led to the killing of two female fur
seals have been remedied and additional or improved methods to detect
female fur seals in the harvest are being implemented.
(g) Harvest termination provisions. (1) The Assistant Administrator
shall terminate the annual take provided for in Sec. 216.71 on August 8
for sub-adult males on St. Paul and St. George Islands and on November
30 for male young of the year on St. George Island.
(2) The Assistant Administrator shall terminate the take provided
for in Sec. 216.71 when (s)he determines under paragraph (f)(1)(i) or
(f)(1)(iii) of this section that the subsistence needs of the
Pribilovians on the island have been satisfied or the upper end of the
harvest range has been reached, whichever occurs first.
(3) The Assistant Administrator shall terminate the take on St.
George Island provided for in Sec. 216.71 if a total of three female
fur seals are killed during the season on St. George Island.
[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, as
amended at 79 FR 65337, Nov. 4, 2014]
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 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 between fur seal harvesters, tribal and
Federal Officials.
(a) St. George Island. Federal scientists and Pribilovians
cooperatively manage the subsistence harvest of northern fur seals under
section 119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The
Federally recognized tribes on the Pribilof Islands have signed
agreements describing a shared interest in the conservation and
management of fur seals and the designation of co-management councils
that meet and address the purposes of the co-management agreements for
representatives from NMFS, St. George and St. Paul tribal governments.
NMFS representatives are responsible for compiling information related
to sources of human-caused mortality and
[[Page 72]]
serious injury of marine mammals. The Pribilovians are responsible for
reporting their subsistence needs and actual level of subsistence take.
This information is used to update stock assessment reports and make
determinations under Sec. 216.72. Pribilovians who take fur seals for
subsistence uses collaborate with NMFS representatives and the
respective tribal representatives to consider best harvest practices
under co-management and to facilitate scientific research.
(b) St. Paul Island. The 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:
(1) The number of seals taken each day in the subsistence harvest,
(2) The extent of the utilization of fur seals taken, and
(3) 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) of this chapter.
[79 FR 65338, Nov. 4, 2014]
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 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
[[Page 73]]
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, wholesaler/
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. 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) Driftnet. By a vessel engaged in large-scale driftnet fishing;
or
(3) Other fisheries. By a vessel in a fishery other than one
described in paragraph (a)(1) or (2) of this section unless such product
is accompanied as described in Sec. 216.93(d), (e), or (f), as
appropriate, by:
(i) For tuna caught in a purse seine fishery outside the ETP by a
vessel on a fishing trip that began before July 13, 2013, 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.
(ii) For tuna caught by a vessel on a fishing trip that began on or
after July 13, 2013, and before May 21, 2016, a written statement
executed by the Captain of the vessel certifying:
(A) For a purse seine vessel outside the ETP, that no purse seine
net was intentionally deployed on or used to encircle dolphins during
the fishing trip in which the tuna were caught, and that no dolphins
were killed or seriously injured in the sets in which the tuna were
caught;
[[Page 74]]
(B) For a vessel other than one described in paragraph (a)(3)(ii)(A)
of this section, that no dolphins were killed or seriously injured in
the sets or other gear deployments in which the tuna were caught.
(iii) For tuna caught by a vessel on a fishing trip that began on or
after May 21, 2016, a written statement executed by the Captain of the
vessel certifying that:
(A) No purse seine net or other fishing gear was intentionally
deployed on or used to encircle dolphins during the fishing trip in
which the tuna were caught, and that no dolphins were killed or
seriously injured in the sets or other gear deployments in which the
tuna were caught; and
(B) The Captain of the vessel has completed the NMFS Tuna Tracking
and Verification Program dolphin-safe captain's training course. The
NMFS Tuna Tracking and Verification Program dolphin-safe captain's
training course is available on the Web site of the NMFS Tuna Tracking
and Verification Program at http://www.nmfs.noaa.gov/pr/dolphinsafe.
(iv) For tuna caught in a fishery where the Assistant Administrator
has determined that observers participating in a national or
international observer program are qualified and authorized to issue
observer statements for purposes of the dolphin-safe labeling program,
and where such an observer is on board the vessel, a written statement
executed by the observer, or by an authorized representative of a nation
participating in the observer program based on information from the
observer. Any determination by the Assistant Administrator shall be
announced in a notice published in the Federal Register. Determinations
under this paragraph (a)(3)(iv) will also be publicized on the Web site
of the NMFS Tuna Tracking and Verification Program (http://
www.nnmfs.noaa.gov/pr/dolphinsafe). The written statement shall certify:
(A) That no dolphins were killed or seriously injured in the sets or
other gear deployments in which the tuna were caught; and,
(B) In purse seine fisheries, that no purse seine net was
intentionally deployed on or used to encircle dolphins during the trip
on which the tuna were caught.
(v) For tuna caught in a fishery in which the Assistant
Administrator has determined that either a regular and significant
association between dolphins and tuna (similar to the association
between dolphins and tuna in the ETP) or a regular and significant
mortality or serious injury of dolphins is occurring, 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, unless the Assistant Administrator determines
an observer statement is unnecessary. Determinations under this
paragraph (a)(3)(v) will also be publicized on the Web site of the NMFS
Tuna Tracking and Verification Program (http://www.nmfs.noaa.gov/pr/
dolphinsafe). The written statement shall certify that:
(A) No fishing gear was intentionally deployed on or used to
encircle dolphins during the trip on which the tuna were caught;
(B) No dolphins were killed or seriously injured in the sets or
other gear deployments in which the tuna were caught; and
(C) Any relevant requirements of paragraph (a)(4) of this section
were complied with during the trip on which the tuna were caught.
(4) Other fisheries--segregation. In a fishery other than one
described in paragraph (a)(1) or (2) of this section on a fishing trip
that began on or after July 13, 2013 unless the tuna caught in sets or
gear deployments designated as dolphin-safe was stored physically
separate from tuna caught in a non-dolphin-safe set or other gear
deployment by the use of netting, other material, or separate storage
areas from the time of capture through unloading. If tuna caught in a
set or other gear deployment where a dolphin was killed or seriously
injured is not stored physically separate from dolphin-safe tuna as
stated in Sec. 216.93(c)(2)(i) or (c)(3)(i), as applicable, all tuna
inside the storage well or other storage location shall be considered
non-dolphin-safe.
(5) Other fisheries--chain of custody recordkeeping. By a vessel in
a fishery
[[Page 75]]
other than one described in paragraph (a)(1) or (2) of this section
unless:
(i) For tuna designated dolphin-safe that was harvested on a fishing
trip that began on or after May 21, 2016, in addition to any other
applicable requirements:
(A) The importer of record or U.S. processor of tuna or tuna
products, as applicable, maintains information on the complete chain of
custody, including storage facilities, transshippers, processors, re-
processors, and wholesalers/distributors to enable dolphin-safe tuna to
be distinguished from non-dolphin-safe tuna from the time it is caught
to the time it is ready for retail sale;
(B) The importer of record or the U.S. processor, as appropriate,
ensures that information is readily available to NMFS upon request to
allow it to trace any non-dolphin-safe tuna loaded onto the vessel back
to one or more storage wells or other storage locations for a particular
fishing trip and to show that such non-dolphin-safe tuna was kept
physically separate from dolphin-safe tuna through unloading.
(ii) For tuna designated dolphin-safe that was harvested in a
fishery about which the Assistant Administrator made a determination
under paragraph (a)(3)(v) of this section, and harvested on a fishing
trip that begins on or after 60 days after the date of the Federal
Register notice of that determination, the tuna or tuna products are
accompanied by valid documentation signed by a representative of the
vessel flag nation or the processing nation (if processed in another
nation) certifying that:
(A) The catch documentation is correct;
(B) The tuna or tuna products meet the dolphin-safe labeling
standards under this section; and
(C) The chain of custody information is correct.
(iii) The information referred to in paragraphs (a)(5)(i) and (ii)
of this section is maintained at the place of business of the importer
of record or the U.S. processor, as applicable, for a period of 2 years
from the date of the import or receipt, and be made available to NMFS
for inspection upon request.
(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.
[81 FR 15448, 15449, Mar. 23, 2016]
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
[[Page 76]]
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 as described in Sec.
216.24(f)(3) by a properly completed FCO; and
(iii) The tuna or tuna products are accompanied as described in
Sec. 216.24(f)(3) 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, as amended at 74 FR 1617, Jan. 13, 2009]
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.
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) ETP large purse seine vessel.
In the ETP by a purse seine vessel of greater than 400 st (362.8 mt)
carrying capacity:
(i) During fishing trips, any part of which included fishing in the
ETP, 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
[[Page 77]]
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.
(ii) 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.
(iii) 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.
(iv) 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.
(v) The handling of TTFs and the tracking and verification of tuna
caught in the Convention Area by a U.S. purse seine vessel greater than
400 st (362.8 mt) carrying capacity shall be conducted consistent with
the international tuna tracking and verification program adopted by the
Parties to the Agreement on the IDCP.
(2) Purse seine vessel other than ETP large purse seine vessel. This
paragraph (c)(2) applies to tuna product labeled dolphin-safe that
includes tuna harvested on a fishing trip that began on or after July
13, 2013, in the ETP by a purse seine vessel of 400 st (362.8 mt) or
less carrying capacity or by a purse seine vessel outside the ETP of any
carrying capacity.
(i) Tuna caught in sets designated as dolphin-safe must be stored
separately from tuna caught in non-dolphin-safe sets from the time of
capture through unloading. Tuna caught in sets where a dolphin died or
was seriously injured must be stored in a well designated as non-
dolphin-safe by the captain or, where applicable, by a qualified and
authorized observer under Sec. 216.91. Any tuna loaded into a well
previously designated non-dolphin-safe is considered non-dolphin-safe
tuna. The captain or, where applicable, a qualified and authorized
observer under Sec. 216.91, 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.
If a purse seine vessel has only one well used to store tuna, dolphin-
safe tuna must be kept physically separate from non-dolphin-safe tuna by
using netting or other material. If a purse seine vessel has more than
one well used to store tuna, all tuna inside a well shall be considered
non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into
the well, regardless of the use of netting or other material inside the
well.
(ii) 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.
(3) Other vessels. This paragraph (c)(3) applies to tuna product
labeled dolphin-safe that includes tuna harvested by a vessel on a
fishing trip that began on or after July 13, 2013 other than ones
described in paragraphs (c)(1) or (2) of this section:
(i) Tuna caught in sets or other gear deployments designated as
dolphin-safe must be stored separately from tuna caught in non-dolphin-
safe sets or other gear deployments from the time of capture through
unloading. Dolphin-safe tuna must be kept physically separate from non-
dolphin-safe tuna by using netting, other material, or separate storage
areas. The captain or,
[[Page 78]]
where applicable, a qualified and authorized observer under Sec.
216.91, must designate the storage areas for dolphin-safe and non-
dolphin-safe tuna.
(ii) 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.
(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 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: whether the tuna is eligible to be labeled
dolphin-safe under Sec. 216.91, 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, gear type, trip dates,
carrier name, unloading dates, and location of unloading. Where the
processor indicates the tuna is eligible to be labeled dolphin-safe
under Sec. 216.91, it must enclose the certifications required by that
section.
(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-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 processor operations other than cannery operations.
U.S. tuna processors other than cannery operations engaged in processing
tuna products, including frozen, dried, or smoked tuna products, must
submit a report to the Administrator, Southwest Region that includes the
information set out in Sec. 216.93(d)(2) and (3) on a monthly basis for
all tuna received at their processing facilities that will be included
in any tuna product labeled dolphin-safe.
(f) Tracking imports. All tuna products, except fresh tuna, that are
imported into the United States must be accompanied as described in
Sec. 216.24(f)(3) by a properly certified FCO as required by Sec.
216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated
certifications and statements must be submitted by the importer of
record to U.S. Customs and Border Protection as described in and
required by Sec. 216.24(f)(2).
(g) 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),
(d) and (e) of this section, invoices, other import documents, and trip
reports.
[[Page 79]]
(2) Record submission. At the time of, or in advance of, importation
of a shipment of tuna or tuna products, any importer of tuna or tuna
products must submit all corresponding FCOs and required certifications
and statements for those tuna or tuna products as required by Sec.
216.24(f)(2).
(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.
(h) 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.''
[78 FR 41002, July 9, 2013, as amended at 81 FR 51133, Aug. 3, 2016]
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 80]]
[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 81]]
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 82]]
(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 83]]
(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 84]]
(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 85]]
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
[[Page 86]]
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.
Subparts J-X [Reserved]
Sec. Figure 1 to Part 216--Northern Fur Seal Breeding Areas (Rookeries)
and Hauling Grounds on St. George Island, Alaska
[[Page 87]]
[GRAPHIC] [TIFF OMITTED] TR04NO14.000
[79 FR 65338, Nov. 4, 2014]
[[Page 88]]
PART 217_REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL
TO SPECIFIED ACTIVITIES--Table of Contents
Subpart A [Reserved]
Subpart B_Taking of Marine Mammals Incidental to Coastal Commercial
Fireworks Displays at Monterey Bay National Marine Sanctuary, CA
Sec.
217.11 Specified activity and specified geographical region.
217.12 Effective dates.
217.13 Permissible methods of taking.
217.14 Prohibitions.
217.15 Mitigation.
217.16 Requirements for monitoring and reporting.
217.17 Letters of Authorization.
217.18 Renewals and Modifications of Letters of Authorization.
Subparts C-E [Reserved]
Subpart F_Taking of Marine Mammals Incidental To Target and Missile
Launch Activities From San Nicolas Island, CA
217.50 Specified activity and specified geographical region.
217.51 Effective dates.
217.52 Permissible methods of taking.
217.53 Prohibitions.
217.54 Mitigation.
217.55 Requirements for monitoring and reporting.
217.56 Applications for Letters of Authorization.
217.57 Letters of Authorization.
217.58 Renewal and modifications of Letters of Authorization.
Subpart G_Taking of Marine Mammals Incidental to U.S. Air Force
Launches, Aircraft and Helicopter Operations, and Harbor Activities
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB),
California
217.60 Specified activity and specified geographical region.
217.61 Effective dates.
217.62 Permissible methods of taking.
217.63 Prohibitions.
217.64 Mitigation.
217.65 Requirements for monitoring and reporting.
217.66 Letters of Authorization.
217.67 Renewals and modifications of Letters of Authorization.
Subpart H [Reserved]
Subpart I_Taking of Marine Mammals Incidental to Naval Explosive
Ordnance Disposal School Training Operations
217.80 Specified activity and specified geographical region.
217.81 Effective dates.
217.82 Permissible methods of taking.
217.83 Prohibitions.
217.84 Mitigation.
217.85 Requirements for monitoring and reporting.
217.86 Applications for Letters of Authorization.
217.87 Letters of Authorization.
217.88 Renewal and review of Letters of Authorization and adaptive
management.
217.89 Modifications of Letters of Authorization.
Subparts J-K [Reserved]
Subpart L_Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and
Training Range (EGTTR) in the Gulf of Mexico
217.110 Specified activity and specified geographical region.
217.111 Effective dates.
217.112 Permissible methods of taking.
217.113 Prohibitions.
217.114 Mitigation.
217.115 Requirements for monitoring and reporting.
217.116 Applications for Letters of Authorization.
217.117 Letters of Authorization.
217.118 Renewals and Modifications of Letters of Authorization.
Subpart M [Reserved]
Subpart N_Taking Marine Mammals Incidental to Seismic Surveys in Cook
Inlet, Alaska
217.130 Specified activity and specified geographical region.
217.131 Effective dates.
217.132 Permissible methods of taking.
217.133 Prohibitions.
217.134 Mitigation requirements.
217.135 Requirements for monitoring and reporting.
217.136 Letters of Authorization.
[[Page 89]]
217.137 Renewals and modifications of Letters of Authorization and
Adaptive Management.
Subpart O_Taking of Marine Mammals Incidental to Operation of Offshore
Oil and Gas Facilities in the U.S. Beaufort Sea
217.140 Specified activity and specified geographical region.
217.141 Effective dates.
217.142 Permissible methods of taking.
217.143 Prohibitions.
217.144 Mitigation.
217.145 Measures to ensure availability of species for subsistence uses.
217.146 Requirements for monitoring and reporting.
217.147 Applications for Letters of Authorization.
217.148 Letters of Authorization.
217.149 Renewal of Letters of Authorization and adaptive management.
217.150 Modifications of Letters of Authorization.
Subpart P_Taking Marine Mammals Incidental to Construction and Operation
of a Liquefied Natural Gas Deepwater Port in the Gulf of Mexico
217.151 Specified activity and specified geographical region.
217.152 Effective dates.
217.153 Permissible methods of taking.
217.154 Prohibitions.
217.155 Mitigation.
217.156 Requirements for monitoring and reporting.
217.157 Letters of Authorization.
217.158 Renewals and Modifications of Letters of Authorization.
Subparts Q-T [Reserved]
Subpart U_Taking Of Marine Mammals Incidental To The Port of Anchorage
Marine Terminal Redevelopment Project
217.200 Specified activities and specified geographical region.
217.201 Effective dates.
217.202 Permissible methods of taking.
217.203 Prohibitions.
217.204 Mitigation.
217.205 Requirements for monitoring and reporting.
217.206 Applications for Letters of Authorization.
217.207 Letters of Authorization.
217.208 Renewal of Letters of Authorization.
217.209 Modifications of Letters of Authorization.
Subpart W_Taking and Importing Marine Mammals; Elliott Bay Seawall
Project
217.220 Specified activity and specified geographical region.
217.221 Effective dates and definitions.
217.222 Permissible methods of taking.
217.223 Prohibitions.
217.224 Mitigation.
217.225 Requirements for monitoring and reporting.
217.226 Letters of Authorization.
217.227 Renewals and Modifications of Letters of Authorization.
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
Source: 74 FR 35143, July 20, 2009, unless otherwise noted.
Subpart A [Reserved]
Subpart B_Taking of Marine Mammals Incidental to Coastal Commercial
Fireworks Displays at Monterey Bay National Marine Sanctuary, CA
Source: 77 FR 31544, May 29, 2012, unless otherwise noted.
Effective Date Note: At 77 FR 31544, May 29, 2012, subpart B was
added, effective June 28, 2012, through June 28, 2017.
Sec. 217.11 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the Monterey Bay
National Marine Sanctuary (MBNMS) and those persons it authorizes to
display fireworks within the MBNMS for the taking of marine mammals that
occurs in the area described in paragraph (b) of this section and that
occurs incidental to authorization of commercial fireworks displays.
(b) The taking of marine mammals by MBNMS may be authorized in a
Letter of Authorization (LOA) only if it occurs in waters of the MBNMS.
Sec. 217.12 Effective dates.
Regulations in this subpart are effective from June 28, 2012,
through June 28, 2017.
[[Page 90]]
Sec. 217.13 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 and 217.17 of
this chapter, the Holder of the LOA (hereinafter ``MBNMS'') may
incidentally, but not intentionally, take marine mammals within the area
described in Sec. 217.11(b) of this chapter, provided the activity is
in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.11(a) of this chapter is limited to the
following species and is limited to Level B Harassment:
(1) Harbor seal (Phoca vitulina)--1,150 (an average of 230 annually)
(2) California sea lion (Zalophus californianus)--21,095 (an average
of 4,219 annually)
Sec. 217.14 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.11 of this chapter
and authorized by a LOA issued under Sec. Sec. 216.106 and 217.17 of
this chapter, no person in connection with the activities described in
Sec. 217.11 of this chapter may:
(a) Take any marine mammal not specified in Sec. 217.13(b) of this
chapter;
(b) Take any marine mammal specified in Sec. 217.13(b) of this
chapter other than by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.13(b) of this
chapter 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 this subpart or a LOA issued under Sec. Sec. 216.106
and 217.17 of this chapter.
Sec. 217.15 Mitigation.
(a) The activity identified in Sec. 217.11(a) of this chapter must
be conducted in a manner that minimizes, to the greatest extent
practicable, adverse impacts on marine mammals and their habitats. When
conducting the activities identified in Sec. 217.11(a) of this chapter,
the mitigation measures contained in the LOA issued under Sec. Sec.
216.106 and 217.17 of this chapter must be implemented. These mitigation
measures include but are not limited to:
(1) Limiting the location of the authorized fireworks displays to
the four specifically designated areas at Half Moon Bay, the Santa Cruz/
Soquel area, the northeastern Monterey Breakwater, and Cambria (Santa
Rosa Creek);
(2) Limiting the frequency of authorized fireworks displays to no
more than twenty total displays per year and no more than one fireworks
display every 2 months in each of the four prescribed 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) Continuing to implement authorization requirements and general
and special restrictions for each event, as determined by MBNMS.
Standard requirements include, but are not limited to, the use of a
ramp-up period, wherein salutes are not allowed in the first 5 minutes
of the display; the removal of plastic and aluminum labels and
wrappings; and post-show reporting and cleanup. MBNMS shall continue to
assess displays and restrict the number of aerial salute effects on a
case-by-case basis, and shall implement general and special restrictions
unique to each fireworks event as necessary.
(b) The mitigation measures that the individuals conducting the
fireworks are responsible for will be included as a requirement in
fireworks display authorizations issued by MBNMS to the individual
entities.
Sec. 217.16 Requirements for monitoring and reporting.
(a) MBNMS is responsible for ensuring that all monitoring required
under a LOA is conducted appropriately, including, but not limited to:
(1) A census of all pinnipeds in the impact area on the day prior to
all displays, with observations to occur for no less than 30 minutes,
and
[[Page 91]]
(2) Reporting to NMFS of all marine mammal injury, serious injury,
or mortality observed in the vicinity of the display area. Monitoring
for injury, serious injury, or mortality shall occur no later than the
morning after each fireworks display, and shall occur for no less than
30 minutes.
(b) Unless specified otherwise in the LOA, MBNMS 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. 217.16(a) of this
chapter, and any additional information required by the LOA. A final
annual monitoring report must be submitted to 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.
(c) A draft comprehensive monitoring report on all marine mammal
monitoring 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. 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 NMFS, the draft report will be considered to be the final
comprehensive monitoring report.
Sec. 217.17 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, MBNMS must apply for and obtain a LOA.
(b) A LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, MBNMS must apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, MBNMS must apply
for and obtain a modification of the LOA as described in Sec. 217.18 of
this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of a LOA shall be published in the
Federal Register within 30 days of a determination.
Sec. 217.18 Renewals and modifications of Letters of Authorization.
(a) A LOA issued under Sec. Sec. 216.106 and 217.17 of this chapter
for the activity identified in Sec. 217.11(a) of this chapter shall be
renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec. 217.18(c)(1)
of this chapter), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in Sec. 217.18(c)(1) of this chapter) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed LOA in the
Federal Register, including the associated
[[Page 92]]
analysis illustrating the change, and solicit public comment before
issuing the LOA .
(c) A LOA issued under Sec. Sec. 217.106 and 217.17 of this chapter
for the activity identified in Sec. 217.11(a) of this chapter may be
modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
with MBNMS regarding the practicability of the modifications) if doing
so creates a reasonable likelihood of more effectively accomplishing the
goals of the mitigation and monitoring set forth in the preamble for
these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from MBNMS's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) Emergencies--If NMFS 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. 217.13(b) of this chapter, an LOA may
be modified without prior notice or opportunity for public comment.
Notification would be published in the Federal Register within 30 days
of the action.
Subparts C-E [Reserved]
Subpart F_Taking of Marine Mammals Incidental To Target and Missile
Launch Activities From San Nicolas Island, CA
Source: 79 FR 32684, June 3, 2014, unless otherwise noted.
Effective Date Note: At 79 FR 32684, June 3, 2014, subpart F was
added, effective June 3, 2014, through June 3, 2019.
Sec. 217.50 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 the
Naval Air Warfare Center Weapons Division, U.S. Navy, and those persons
it authorizes to engage in target missile launch activities and
associated aircraft and helicopter operations 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 vehicles (e.g., RAM, Coyote, MSST,
Terrier, SM-3, or similar) from Alpha Launch Complex and smaller
missiles and targets from Building 807 on San Nicolas Island,
California.
Sec. 217.51 Effective dates.
Regulations in this subpart are effective from June 3, 2014, through
June 3, 2019.
Sec. 217.52 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106
and 217.57 of this chapter, the Holder of the Letter of Authorization
may incidentally, but not intentionally, take marine mammals by
harassment, within the area described in Sec. 217.50, provided the
activity is in compliance with all terms, conditions, and requirements
of the regulations and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 217.50 must be conducted in a
manner that minimizes, to the greatest extent practicable, any adverse
impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals is authorized for the
species
[[Page 93]]
listed in Sec. 217.50(b) and is limited to Level B Harassment.
Sec. 217.53 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.50 and authorized
by a Letter of Authorization issued under Sec. Sec. 216.106 and 217.57
of this chapter, no person in connection with the activities described
in Sec. 217.50 may:
(a) Take any marine mammal not specified in Sec. 217.50(b);
(b) Take any marine mammal specified in Sec. 217.50(b) other than
by incidental, unintentional harassment;
(c) Take a marine mammal specified in Sec. 217.50(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 this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.57 of this chapter.
Sec. 217.54 Mitigation.
(a) When conducting operations identified in Sec. 217.50(c), the
mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.57 must be implemented. These
mitigation measures include, but are not limited to:
(1) The holder of the Letter of Authorization must not enter
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, whenever
possible, launch activities during harbor seal pupping season (February
to April), unless constrained by factors including, but not limited to,
human safety, national security, or for vehicle launch trajectory
necessary to meet mission objectives.
(3) The holder of the Letter of Authorization must limit, whenever
possible, launch activities during other pinniped pupping seasons,
unless constrained by factors including, but not limited to, human
safety, national security, or for vehicle launch trajectory necessary to
meet mission objectives.
(4) The holder of the Letter of Authorization must not launch
vehicles from the Alpha Complex at low elevation (less than 1,000 feet
(305 m)) on launch azimuths that pass close to pinniped haul-out sites
when occupied.
(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, except when required by the test
objectives.
(7) Aircraft and helicopter flight paths must maintain a minimum
altitude of 1,000 feet (305 m) from pinniped haul-outs and rookeries,
except in emergencies or for real-time security incidents (e.g., search-
and-rescue, fire-fighting), which may require approaching pinniped haul-
outs and rookeries closer than 1,000 feet (305 m).
(8) If post-launch surveys determine that an injurious or lethal
take of a marine mammal has occurred or there is an indication that the
distribution, size, or productivity of the potentially affected pinniped
populations has been affected, the launch procedure and the monitoring
methods must be reviewed, in cooperation with NMFS, and, if necessary,
appropriate changes must be made through modification to a Letter of
Authorization, prior to conducting the next launch of the same vehicle
under that Letter of Authorization.
(9) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.55 Requirements for monitoring and reporting.
(a) Unless specified otherwise in the Letter of Authorization, the
Holder of the Letter of Authorization must notify the Administrator,
West Coast Region, NMFS, by letter or telephone, at least 2 weeks prior
to activities possibly involving the taking of marine mammals. If the
authorized activity identified in Sec. 217.50 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. 217.50(b), then the Holder of
the Letter of Authorization must notify the Director, Office of
Protected Resources, NMFS, or designee, by telephone (301-427-8401), and
the Administrator, West
[[Page 94]]
Coast Region, NMFS, or designee, by telephone (562-980-3232), within 48
hours of the discovery of the injured or dead animal.
(b) The National Marine Fisheries Service must be informed
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 individual(s), approved in advance by
NMFS, 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 three 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 those individuals, described
in paragraph (c) of this section, of 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 no less than 1 hour immediately
following the launch of target missiles.
(iii) Systematic visual observations, by those individuals,
described in paragraph (c) of this section, of pinniped presence and
activity will be conducted and recorded in a field logbook a minimum of
2 hours prior to launch, during launch, and for no less than 1 hour
after the launch of the BQM-34, BQM-74, Tomahawk, RAM target and similar
types of missiles.
(iv) 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 three 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 to NMFS, West Coast Regional Office, providing reporting
items found under the Letter of Authorization, unless other arrangements
for monitoring are agreed upon in writing.
(2) The Navy shall submit an annual report describing their
activities and including the following information:
(i) Timing, number, and nature of launch operations;
(ii) Summary of mitigation and monitoring implementation;
(iii) Summary of pinniped behavioral observations; and
(iv) Estimate of the amount and nature of all takes by harassment or
by other means.
[[Page 95]]
(3) The Navy shall submit a draft comprehensive technical report to
the Office of Protected Resources and West Coast Regional Office, NMFS,
180 days prior to the expiration of the regulations in this subpart,
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
regulations.
(4) A revised final comprehensive technical report, including all
monitoring results during the entire period of validity of the Letter of
Authorization, will be due 90 days after the end of the period of
effectiveness of the regulations in this subpart.
(5) The final report will be subject to review and comment by NMFS.
Any recommendations made by NMFS must be addressed in the final
comprehensive technical report prior to acceptance by NMFS.
(f) Activities related to the monitoring described in paragraphs (c)
and (d) of this section, or in the Letter of Authorization issued under
Sec. Sec. 216.106 and 217.57 of this chapter, including the retention
of marine mammals, may be conducted without the need for a separate
scientific research permit.
(g) In coordination and compliance with appropriate Navy
regulations, the NMFS may, at its discretion, 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. 217.56 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to the regulations in
this subpart, the U.S. citizen (as defined by Sec. 216.6 of this
chapter) conducting the activity identified in Sec. 217.50 (the U.S.
Navy) must apply for and obtain either an initial LOA in accordance with
Sec. 217.57 or a renewal under Sec. 217.58.
Sec. 217.57 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.
(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).
Sec. 217.58 Renewals and Modifications of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. Sec. 216.106 and
217.57 of this chapter for the activity identified in Sec. 217.50 will
be renewed or modified upon request of the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision of this chapter),
and;
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting measures (excluding changes made pursuant to the adaptive
management provision of this chapter) that do not change the findings
made for the regulations or result in no more than a minor change in the
total estimated number of takes (or distribution by species or years),
NMFS may publish a notice of proposed LOA in the Federal Register,
including the associated analysis illustrating the change, and solicit
public comments before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 and 217.57 of this
chapter for the activity identified in Sec. 217.50 may be modified by
[[Page 96]]
NMFS under the following circumstances:
(1) Adaptive management. NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
with the Navy regarding the practicability of the modifications) if
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data could contribute to the decision to
modify the mitigation, monitoring, and reporting measures in an LOA:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies; or
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) Emergencies. If NMFS 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. 217.50(b), a Letter of Authorization
may be modified without prior notice or opportunity for public comment.
Notice would be published in the Federal Register within 30 days of the
action.
Subpart G_Taking of Marine Mammals Incidental to U.S. Air Force
Launches, Aircraft and Helicopter Operations, and Harbor Activities
Related to Launch Vehicles From Vandenberg Air Force Base (VAFB),
California
Source: 79 FR 10026, Feb. 24, 2014, unless otherwise noted.
Effective Date Note: At 79 FR 10026, Feb. 24, 2014, subpart H was
added, effective from Mar. 26, 2014, through Mar. 26, 2019.
Sec. 217.60 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the 30th Space Wing,
United States Air Force (USAF), at Vandenberg Air Force Base and those
persons it authorizes to conduct activities on its behalf for the taking
of marine mammals that occurs in the area outlined in paragraph (b) of
this section and that occurs incidental to:
(1) Launching up to 15 space and each year from Vandenberg Air Force
Base, for a total of up to 75 missiles over the 5-year period of these
regulations,
(2) Launching up to 35 rockets each year from Vandenberg Air Force
Base, for a total of up to 175 rocket launches over the 5-year period of
these regulations,
(3) Aircraft flight test operations,
(4) Helicopter operations from Vandenberg Air Force Base, and
(5) Delta Mariner (or a similar vessel) operations, cargo unloading
activities, and harbor maintenance dredging.
(b) The taking of marine mammals by the USAF may be authorized in a
Letter of Authorization only if it occurs from the space launch
complexes, launch facilities, and test pads on north and south
Vandenberg Air Force Base and the Vandenberg Air Force Base harbor on
South Base.
Sec. 217.61 Effective dates.
Regulations in this subpart are effective from March 26, 2014
through March 26, 2019.
Sec. 217.62 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.60 of this chapter, the Holder of the Letter of
Authorization (herein after the USAF) may incidentally, but not
intentionally, take marine mammals by harassment, within the area
described in Sec. 217.60(b), provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the appropriate Letter of Authorization.
(b) The activities identified in Sec. 217.60(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
[[Page 97]]
(c) The incidental take of marine mammals under the activities
identified in Sec. 217.60(a) of this chapter is limited to the
indicated number of Level B harassment takes on an annual basis of the
following species:
(1) Harbor seals (Phoca vitulina)--31,161;
(2) California sea lions (Zalophus californianus)--465,129;
(3) Northern elephant seals (Mirounga angustirostris)--80,024;
(4) Northern fur seals (Callorhinus ursinus)--62,500; and
(5) Steller sea lions (Eumetopias jubatus)--1,824.
Sec. 217.63 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.62(c) and
authorized by a Letter of Authorization issued under Sec. Sec. 216.106
and 217.66 of this chapter, no person in connection with the activities
described in Sec. 217.60 may:
(a) Take any marine mammal not specified in Sec. 217.62(c);
(b) Take any marine mammal specified in Sec. 217.62(c) other than
by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.62(c) if NMFS
determines 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 this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.66 of this chapter.
Sec. 217.64 Mitigation.
(a) When conducting the activities identified in Sec. 217.60(a),
the mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.66 of this chapter must be implemented.
These mitigation measures include (but are not limited to):
(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 haul-outs
and rookeries closer than 1,000 ft (305 m).
(2) For missile and rocket launches, holders of Letters of
Authorization must avoid, whenever possible, 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) Vandenberg Air Force Base must avoid, whenever possible,
launches which are predicted to produce a sonic boom on the Northern
Channel Islands during harbor seal, elephant seal, California sea lion,
and northern fur seal pupping seasons of 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 the National
Marine Fisheries Service (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) Delta Mariner (or a similar vessel) operations, cargo unloading,
and harbor maintenance dredging measures:
(i) If activities occur during nighttime hours, turn on lighting
equipment before dusk. Lights must remain on for the entire night to
avoid startling pinnipeds.
(ii) Initiate operations before dusk.
(iii) Keep construction noises at a constant level (i.e., not
interrupted by periods of quiet in excess of 30 minutes) while pinnipeds
are present.
(iv) Initiate a gradual start-up of activities to ensure a gradual
increase in noise levels if activities cease for longer than 30 minutes
and pinnipeds are in the area.
(v) Conduct visual monitor, by a qualified observer, of the harbor
seals on the beach adjacent to the harbor and on rocks for any flushing
or other behaviors as a result of activities described in Sec.
217.60(a).
(vi) The Delta Mariner and accompanying vessels must enter the
harbor
[[Page 98]]
only when the tide is too high for harbor seals to haul-out on the
rocks; reducing speed to 1.5 to 2 knots (1.5-2 nm/hr; 2.8-3.7 km/hr)
once the vessel is within 3 mi (4.83 km) of the harbor. The vessel must
enter the harbor stern first, approaching the wharf and moorings at less
than 0.75 knot (1.4 km/hr).
(vii) Explore alternate dredge methods and introduce quieter
techniques and equipment as they become available.
(6) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.65 Requirements for monitoring and reporting.
(a) Unless specified otherwise in the Letter of Authorization, the
USAF must notify the Administrator, West Coast Region, NMFS, by letter
or telephone, at least 2 weeks prior to activities possibly involving
the taking of marine mammals. If the authorized activity identified in
Sec. 217.60(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. 217.62(c), then the USAF must notify the Director, Office of
Protected Resources, NMFS, or designee, by telephone (301-427-8401),
within 48 hours of the discovery of the injured or dead animal.
(b) To conduct monitoring of launch activities, the USAF must
designate qualified, on-site individuals approved in advance by NMFS, as
specified in the Letter of Authorization, to:
(1) Conduct observations on pinniped activity in the vicinity of the
rookery nearest the launch platform or, in the absence of pinnipeds at
that location, at another nearby haul-out, 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 is
predicted to impact one of the Islands between March 1 and June 30,
greater than 1.5 psf between July 1 and September 30, and greater than 2
psf between October 1 and February 28. Monitoring will be conducted at
the haul-out site closest to the predicted sonic boom impact area.
(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 surveys are required 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) To conduct monitoring of harbor activities, the USAF must
designate qualified, on-site individuals approved in advance by NMFS, as
specified in the Letter of Authorization. During nighttime activities,
the harbor area will be illuminated, and the observer will use a night
vision scope. Monitoring activities will consist of the following:
(1) Conducting baseline observation of pinnipeds in the project area
prior to initiating project activities.
(2) Conducting and recording observations on pinnipeds in the
vicinity of the harbor for the duration of the activity occurring when
tides are low enough (less than or equal to 2 ft (0.61 m) for pinnipeds
to haul out.
(3) Conducting post-construction observations of pinniped haul-outs
in the project area to determine whether animals disturbed by the
project activities return to the haul-out.
[[Page 99]]
(d) Holders of Letters of Authorization must conduct additional
monitoring as required under a Letter of Authorization.
(e) The USAF must submit a report to the West Coast Regional
Administrator, NMFS, 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 program, including, but not
necessarily limited to:
(i) Numbers of pinnipeds present on the haul-out prior to
commencement of the launch,
(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 pinnipeds remained off the haul-out or
rookery,
(iv) Numbers of pinniped adults, juveniles 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.
(f) An annual report must be submitted on March 1 of each year.
(g) 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 impacts on pinnipeds and other marine
mammals from the activities specified in Sec. 217.60(a), and
(4) State the date(s), location(s), and findings of any research
activities related to monitoring the effects on launch noise, sonic
booms, and harbor activities on marine mammal populations.
Sec. 217.66 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the USAF must apply for and obtain a Letter of
Authorization.
(b) A Letter of Authorization, unless suspended or revoked, may be
effective for a period of time not to exceed the expiration date of
these regulations.
(c) If a Letter of Authorization expires prior to the expiration
date of these regulations, the USAF must apply for and obtain a renewal
of the Letter of Authorization.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by a Letter of
Authorization, the USAF must apply for and obtain a modification of the
Letter of Authorization as described in Sec. 217.67.
(e) The Letter of Authorization will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the Letter of Authorization shall be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of a Letter of Authorization shall
be published in the Federal Register within 30 days of a determination.
Sec. 217.67 Renewals and modifications of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.66 of this chapter for the activity identified in Sec. 217.60(a)
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec. 217.67(c)(1)
of this chapter), and
(2) NMFS determines that the mitigation, monitoring, and reporting
[[Page 100]]
measures required by the previous Letter of Authorization under these
regulations were implemented.
(b) For Letter of Authorization modification or renewal requests by
the applicant that include changes to the activity or the mitigation,
monitoring, or reporting (excluding changes made pursuant to the
adaptive management provision in Sec. 217.67(c)(1)) that do not change
the findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed Letter of
Authorization in the Federal Register, including the associated analysis
illustrating the change, and solicit public comment before issuing the
Letter of Authorization.
(c) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.66 of this chapter for the activity identified in Sec. 217.60(a)
may be modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
with the USAF regarding the practicability of the modifications) if
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a Letter
of Authorization:
(A) Results from the USAF's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent Letters of Authorization.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed Letter of Authorization in the Federal
Register and solicit public comment.
(2) Emergencies--If NMFS 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. 217.62(c) of this chapter, a Letter of
Authorization may be modified without prior notice or opportunity for
public comment. Notice would be published in the Federal Register within
30 days of the action.
Subpart H [Reserved]
Subpart I_Taking of Marine Mammals Incidental to Naval Explosive
Ordnance Disposal School (NEODS) Training Operations
Source: 77 FR 16736, Mar. 22, 2012, unless otherwise noted.
Sec. 217.80 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
the United States Air Force, Headquarters 96th Air Base Wing, Eglin Air
Force Base, and those persons who engage in activities described in
paragraphs (a)(1) through (7) of this section and the area set forth in
paragraph (b) of this section.
(1) NEODS missions involving underwater detonations of small, live
explosive charges adjacent to inert mines in order to disable the mine
function,
(2) Live training events occurring eight times annually, averaging
one event occurring every 6 to 7 weeks,
(3) Four of the training events involving 5-lb charges, and four
events involving 10-lb charges,
(4) Up to 20 5-lb detonations and twenty 10-lb detonations annually,
for a total of 40 detonations,
(5) The five charges occurring for each training event shall be
detonated individually with a maximum separation time of 20 minutes
between each detonation,
(6) Mine shapes and debris shall be recovered and removed from the
Gulf of Mexico waters when training is completed, and
[[Page 101]]
(7) Each training team has two days to complete their entire
evolution (i.e., detonation of five charges). If operations cannot be
completed on the first live demolition day, the second live demolition
day shall be utilized to complete the evolution.
(b) The incidental take of marine mammals at Eglin Air Force Base,
within the Eglin Military Complex, including three sites in the Eglin
Gulf Test and Training Range at property off Santa Rosa Island, Florida,
in the northern Gulf of Mexico, under the activity identified in
paragraph (a) of this section, is limited to the following species:
Atlantic bottlenose dolphins (Tursiops truncatus).
(1) The latitude/longitude of corners of W-151 in the Eglin Gulf
Test and Training Range are:
(i) 30.24006 deg. North, -86.808838 deg. West
(ii) 29.539011 deg. North, -84.995536 deg. West
(iii) 28.03949 deg. North, -85.000147 deg. West
(iv) 28.027598 deg. North, -85.199395 deg. West
(v) 28.505304 deg. North, -86.799043 deg. West
(2) The latitude/longitude of corners of W-151A in the Eglin Gulf
Test and Training Range are:
(i) 30.24006 deg. North, -86.808838 deg. West
(ii) 30.07499 deg. North, -85.999327 deg. West
(iii) 29.179968 deg. North, -85.996341 deg. West
(iv) 29.384439 deg. North, -86.802579 deg. West
Sec. 217.81 Effective dates.
Regulations in this subpart are effective from April 23, 2012,
through April 24, 2017.
Sec. 217.82 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106
of this chapter and Sec. 217.87, the U.S. Department of the Air Force,
Headquarters 96th Air Base Wing, Eglin Air Force Base (U.S. Air Force),
its contractors, and clients, may incidentally, but not intentionally,
take marine mammals by Level B harassment, within the area described in
Sec. 217.80, provided the activity is in compliance with all terms,
conditions, and requirements of these regulations and the appropriate
Letter of Authorization.
(b) The incidental taking of marine mammals is authorized for the
species listed in Sec. 217.80(b) and is limited to Level B harassment.
(c) The incidental taking of an average of 10 individuals annually
and 50 individuals during the 5-year rule, for Atlantic bottlenose
dolphins.
(d) The U.S. Air Force shall suspend NEODS training operations until
it obtains additional authorization for the take of marine mammals if:
(1) A marine mammal is injured, seriously injured, or killed during
training operations;
(2) The injury, serious injury, or death could be associated with
the activities; and
(3) After coordination and concurrence with NMFS, the U.S. Air Force
determines that supplementary measures are unlikely to reduce the risk
of injury, serious injury or death to a very low level, require the U.S.
Air Force to suspend its activities until an authorization for such
taking has been obtained.
Sec. 217.83 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.80 and authorized
by a Letter of Authorization issued under Sec. Sec. 216.106 of this
chapter and 217.87, no person in connection with the activities
described in Sec. 217.80 may:
(a) Take any marine mammal not specified in Sec. 217.80(b);
(b) Take any marine mammal specified in Sec. 217.80(b) other than
by incidental take as specified in Sec. 217.82(a) through (d);
(c) Take a marine mammal specified in Sec. 217.80(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 this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 of this chapter and 217.87.
Sec. 217.84 Mitigation.
(a) The activity identified in Sec. 217.80(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. 217.80(a), the mitigation measures contained in the
Letter of Authorization issued under Sec. Sec. 216.106 of this chapter
and 217.87 must be implemented.
[[Page 102]]
These mitigation measures include (but are not limited to):
(1) Underwater detonations using timed delay devices will only be
conducted during daylight hours. The time of detonation shall be limited
to an hour after sunrise and an hour before sunset.
(2) NEODS missions shall be postponed if:
(i) The Beaufort sea state is greater than scale number three. Such
a delay would maximize detection of marine mammals.
(ii) Large concentrations of fish, jellyfish, and/or large Sargassum
rafts are observed within the mitigation-monitoring zone. The delay
would continue until the fish, jellyfish, and/or Sargassum rafts that
cause the postponement are confirmed to be outside the mitigation-
monitoring zone.
(3) Time delays longer than 10 minutes will not be used. Initiation
of the timer device will not start until the mitigation-monitoring zone
is clear of marine mammals for 30 minutes.
(4) A calculated mitigation-monitoring zone will be established
around each underwater detonation location based on charge weight and
length of time-delay used. When conducting surveys within the
mitigation-monitoring zone radius (but always outside the detonation
plume radius/human safety zone) and travel in a circular pattern around
the detonation point, surveying the inner (toward the detonation site)
and outer (away from the detonation site) areas. For a survey radius of
914.4 meters, the boat will be positioned at 457.2 meters from the
detonation point. Similarly, for a survey radius of 1,280.2 meters,
boats will be positioned at 640.1 meter distance.
(5) For a survey radius of 914.4 meters, two boats are required. For
a radius of 1,280.2 meters, either three boats or two boats/one
helicopter are required.
(6) When using two boats, each boat will be positioned on opposite
sides of the detonation location, separated by 180 degrees. When using
three boats, each boat will be separated by 120 degrees (equidistant
from each other).
(7) Two observers in each boat will conduct continuous visual
surveys of the mitigation-monitoring zone for the entire duration of the
training event, including at least 30 minutes prior to detonation.
Observers will search the mitigation-monitoring zone for the presence of
marine mammals, and other marine species such as sea turtles, diving
birds, large concentrations of fish or jellyfish, and large Sargassum
mats. The presence of diving birds, fish, jellyfish, and Sargassum may
indicate an increased likelihood of dolphin presence.
(8) To the extent practicable, boats will maintain 18.5 kilometer
per hour search speed. This search speed is expected to ensure adequate
coverage of the buffer zone. While weather conditions and sea state may
require slower speeds in some instances, 18.5 kilometers per hour is
considered a prudent, safe, and executable speed that will allow
adequate surveillance. For a 914.4 meter survey zone, a boat traveling
at 18.5 kilometers per hour and 457.2 meters from the detonation point
would circle the point approximately 3.2 times during a 30 minute survey
period. By using two boats, approximately 6.4 circles would be completed
in total. Similarly, for a 1,280.2 meter radius, each boat would circle
the detonation point approximately 2.3 times within 30 minutes, and use
of three boats would result in 6.9 total circles.
(9) If available, a U.S. Navy helicopter can be used in lieu of one
of the survey boats, so long as safety of flight is not jeopardized.
U.S. Navy helicopter pilots are trained to conduct searches for
relatively small objects in the water, such as a missing person. A
helicopter search pattern is dictated by standard U.S. Navy protocols
and accounts for multiple variables, such as size and shape of the
search area, size of the object, and environmental conditions, among
others.
(10) The mitigation-monitoring zone will be surveyed for 30 minutes
prior to detonation and continue for 30 minutes after detonation
(concentrated on the area down current of the test site), in order to
monitor for marine mammals and other protected species. It is the U.S.
Air Force's (on behalf of the U.S. Navy) intent to conduct five
successive detonations with a maximum time of 20 minutes between
detonations, although a variety of factors can cause a
[[Page 103]]
delay of longer than 20 minutes between detonations, although a variety
of factors can cause a delay of longer than 20 minutes, including a
delay until the following day. Monitoring would continue during the 20
minutes time between detonations, and would serve as both post-
detonation monitoring as well as pre-mission monitoring for the next
detonation. If the time between detonations is delayed beyond 20
minutes, post-mission monitoring will be conducted for 30 minutes. At
the conclusion of the final detonation, post-monitoring will be
conducted for 30 minutes.
(11) Other personnel besides designated observers shall also
maintain situational awareness of the presence of marine mammals within
the mitigation-monitoring zone to the extent practicable given dive
safety considerations.
(12) Divers placing the charges on mines will observe the immediate
underwater area around the detonation site for marine mammals and other
marine species such as diving birds, sea turtles, and Gulf sturgeon, and
report sightings to surface observers.
(13) If a marine mammal is sighted within an established mitigation-
monitoring zone or moving towards it, underwater detonation events will
be postponed or suspended until the marine mammal that caused the
postponement/suspension of training operations has voluntarily left the
area and the area is clear of marine mammals for at least 30 minutes.
(14) If a marine mammal is detected within or about to enter an
established mitigation-monitoring zone and subsequently cannot be
reacquired, the mission will be postponed or suspended until the last
verified location is outside the mitigation-monitoring zone, the animals
is moving away from the area, and the area is clear of marine mammals
for at least 30 minutes.
(15) Any marine mammal observed after an underwater detonation
either injured or exhibiting signs of distress will be reported to Eglin
Air Force Base. Eglin Air Force Base will coordinate with other members
of marine mammal stranding networks, as appropriate, and report these
events to NMFS or U.S. Fish and Wildlife Service. The report will
contain date and time of sighting, location, species description, and
indications of the animal's status.
(16) Training operations shall be suspended if the conditions of
Sec. 217.83(a)-(d) regarding the injury, serious injury, or death of a
marine mammal during NEODS training operations are met.
(17) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.85 Requirements for monitoring and reporting.
(a) Holders of Letters of Authorization pursuant to Sec. 216.106 of
this chapter and Sec. 217.87 for activities described in Sec.
216.80(a) are required to cooperate with NMFS, and any other Federal,
state, or local agency with authority to monitor 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, Southeast Region, NMFS, by letter or telephone, prior to
activities possibly involving the taking of marine mammals. If the
authorized activity identified in Sec. 217.80(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. 217.80(b), then the Holder of
the Letter of Authorization must, in addition to complying with the
requirements of Sec. 217.82(a)-(d), notify the Director, Office of
Protected Resources, NMFS, or designee, by telephone (301-427-8400),
within 24 hours of the discovery of the injured or dead animal.
(b) Holders of Letters of Authorization must designate trained,
qualified, on-site individuals approved in advance by NMFS, as specified
in the Letter of Authorization, to perform the following monitoring
requirements:
(1) For NEODS testing, areas to be used in missions shall be
visually monitored for marine mammal presence from a surface support
vessel prior to detonation of mine neutralization charges. Monitoring
shall be conducted 30 minutes before missions to clear the mitigation-
monitoring zone. Post-mission monitoring shall also be conducted for 30
minutes after the final
[[Page 104]]
detonation (concentrated on the area down current of the test site). If
marine mammals are inside the mitigation-monitoring zone, detonations
shall be postponed until they have left the area. The observer on the
vessel must be equipped with the proper optical equipment and lines of
communication in order to recommend the decision to move forward with
the mission.
(2) Monitoring shall occur pre-mission (for 30 minutes), throughout
the mission, and post-mission (for 30 minutes). Post-mission monitoring
shall concentrate on the area down current of the test site.
(3) Survey clearance procedures shall be conducted using best
operational methods possible. After the mitigation-monitoring zone is
cleared, all dolphins and protected species indicators (e.g., Sargassum
rafts) shall be avoided to the maximum extent possible.
(4) Clearance procedures shall be re-conducted if dolphins or
protected species indicators (e.g., Sargassum rafts) are encountered.
(5) After conducting post-mission monitoring, NEODS training
operations data as required by Eglin Air Force Base's Natural Resources
Section, 96 CEG/CEVSN shall be reported. Post-mission monitoring shall
commence immediately following each detonation and shall be concentrated
on the area down current of the test site. If any injured or dead marine
mammals are observed, that information will be reported and coordinated
with marine animals stranding networks.
(6) An annual summary (coordinated through 96 CEG/CEVSN) of mission
observations shall be submitted to: NMFS, Southeast Regional Office,
Protected Resources Division, 9721 Executive Center Drive North, St.
Petersburg, Florida 33702; and NMFS, Office of Protected Resources, 1315
East West Highway, Silver Spring, Maryland 20910.
(c) Holders of Letters of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) Holders of Letters of Authorization must submit an annual report
summarizing the specified activity as well as monitoring and mitigation
data to the Southeast Regional Administrator and Director of the Office
of Protected Resources, NMFS, within 90 days after the conclusion of the
NEODS training operations. This report must contain the following
information:
(1) Date(s), time(s), and location(s) of explosive activities,
(2) Design of the monitoring program,
(3) Results of the monitoring program including, but not necessarily
limited to:
(i) Species counts,
(ii) Numbers of observed disturbances,
(iii) Descriptions of the disturbance behaviors before, during, and
after explosive activities,
(iv) Bearing and distances,
(v) Observations of unusual behaviors, numbers, or distributions of
marine mammals in the activity area shall be reported to NMFS and the
U.S. Fish and Wildlife Service so that any potential follow-up
observations can be conducted by the appropriate personnel. In addition,
observations of tag-bearing marine mammals, sea turtles, and fish
carcasses as well as any rare or unusual species of marine mammals and
fish shall be reported to NMFS and U.S. Fish and Wildlife Service.
(e) An annual report (referred to in Sec. 217.85(d)) must be
submitted at the time of notification of the renewal of the Letter of
Authorization.
(f) A draft comprehensive final report must be submitted at least
180 days prior to expiration of these regulations. This comprehensive
technical report shall provide full documentation of methods, results,
and interpretation of all monitoring during the first four and a half
years of the Letter of Authorization. A revised final comprehensive
technical report, including all monitoring results during the entire
period of the Letters of Authorization, must be submitted 90 days after
the end of the period of effectiveness of the regulations. This report
shall summarize the activities undertaken and the results reported in
all previous reports.
(g)(1) In the unanticipated event that the specified activity
clearly causes the take of a marine mammal in a
[[Page 105]]
manner prohibited by a Letter of Authorization, such as an injury,
serious injury, or mortality, Eglin Air Force Base will immediately
cease the specified activities and immediately report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS at 301-427-8401 and/or by email to
[email protected] and [email protected], and the NMFS
Southeast Regional Marine Mammal Stranding Network at 877-433-8299
([email protected] and [email protected]) (Florida Marine Mammal
Stranding Hotline at 888-404-3922). The report must include the
following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Status of all noise-generating source use in the 24 hours
preceding the incident;
(iv) Water depth;
(v) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(vi) Description of all marine mammal observations in the 24 hours
preceding the incident;
(vii) Species identification or description of the animal(s)
involved;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s) (if equipment is
available).
Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS shall work with Eglin Air
Force Base to determine what is necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. Eglin Air Force Base
may not resume their activities until notified by NMFS via letter or
email, or telephone.
(2) In the event that Eglin Air Force Base discovers an injured or
dead marine mammal, and the lead observer determines that the cause of
injury or death is unknown and the death is relatively recent (i.e.,
less than a moderate state of decomposition as described in the next
paragraph), Eglin Air Force Base will immediately report the incident to
the Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, at 301-427-8401, and/or by email to
[email protected] and [email protected] and the NMFS
Southeast Region Marine Mammal Stranding Network (877-433-8299) and/or
by email to the Southeast Regional Stranding Coordinator
([email protected]) and Southeast Regional Stranding Program
Administrator ([email protected]). The report must include the same
information identified in the paragraph above. Activities may continue
while NMFS reviews the circumstances of the incident, NMFS will work
with Eglin Air Force Base to determine whether modifications in the
activities are appropriate.
(3) In the event that Eglin Air Force Base discovers an injured or
dead marine mammal, and the lead observer determines that the injury or
death is not associated with or related to the activities authorized in
the Letter of Authorization (e.g., previously wounded animal, carcass
with moderate to advanced decomposition, or scavenger damage), Eglin Air
Force Base will report the incident to the Chief of the Permits and
Conservation Division, Office of Protected Resources, NMFS, at 301-427-
8401, and/or by email to [email protected] and
[email protected], and the NMFS Southeast Regional Marine Mammal
Stranding Network (877-433-8299), and/or by email to the Southeast
Regional Stranding Coordinator ([email protected]) and Southeast
Regional Stranding Program Administrator ([email protected]),
within 24 hours of discovery. Eglin Air Force Base will provide
photographs or video footage (if available) or other documentation of
the stranded animals sighting to NMFS and the Marine Mammal Stranding
Network.
Sec. 217.86 Applications for Letters of Authorization.
(a) 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. 217.80(a) must apply for and obtain
either an initial Letter of Authorization in accordance with Sec.
217.87 or a renewal under Sec. 217.88.
[[Page 106]]
(b) The application must be submitted to NMFS at least 30 days
before the activity is scheduled to begin.
(c) Application for a Letter 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 marine mammals.
(e) [Reserved]
Sec. 217.87 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, shall be
valid for a period of time not to exceed the period of validity of this
subpart.
(b) The Letter of Authorization shall 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 shall be
based on a determination that the total number of marine mammals taken
by the activity as a whole shall have no more than a negligible impact
on the affected species or stock of marine mammal(s).
Sec. 217.88 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 217.87 for the activity identified in Sec. 217.80(a)
shall be renewed upon a request by the applicant or determination by
NMFS and the applicant that modifications are appropriate pursuant to
the adaptive management component of these regulations, provided that:
(1) NMFS is notified that the activity described in the application
submitted under Sec. 217.86 shall be undertaken and there shall not be
a substantial modification to the described work, mitigation or
monitoring undertaken during the upcoming 12 months;
(2) NMFS has received, reviewed, and accepted the monitoring reports
required under Sec. 217.85(d) and (e) and the Letter of Authorization
issued under Sec. 217.87;
(3) NMFS determines that the mitigation, monitoring, and reporting
measures required under Sec. Sec. 217.84 and 217.85 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 217.87 of this
chapter, were undertaken and shall be undertaken during the upcoming
annual period of validity of a renewed Letter of Authorization; and
(4) NMFS makes the determination required by Sec. 217.87(c).
(b) If either a request for a renewal of a Letter of Authorization
issued under Sec. 216.106 of this chapter and Sec. 217.88, or a
determination by NMFS and the applicant that modifications are
appropriate pursuant to the adaptive management component of these
regulations indicates that a substantial modification, as determined by
NMFS, to the described work, mitigation or monitoring undertaken during
the upcoming season shall occur, NMFS shall publish a proposed
modification to the Letter of Authorization in the Federal Register and
provide the public a period of 30 days for review and comment. Review
and comment on renewals or modifications 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 substantive 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 shall be published in the Federal Register.
(d) Adaptive Management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with the U.S. Air
[[Page 107]]
Force regarding the practicability of the modifications) if doing so
creates a reasonable likelihood of more effectively accomplishing the
goals of mitigation and monitoring set forth in the preamble of these
regulations. Below are some of the possible sources of new data that
could contribute to the decision to modify the mitigation or monitoring
measures:
(1) Results from the U.S. Air Force's monitoring from the previous
year;
(2) Results from marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent Letters of Authorization.
Sec. 217.89 Modifications of 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. 216.106 of this
chapter and Sec. 217.87 of this chapter 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. 217.88,
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. 217.80(b), a Letter of
Authorization issued pursuant to Sec. 216.106 of this chapter and Sec.
217.87 of this chapter may be substantively modified without prior
notification and an opportunity for public comment. Notification shall
be published in the Federal Register within 30 days subsequent to the
action.
Subparts J-K [Reserved]
Subpart L_Taking Marine Mammals Incidental to Conducting Precision
Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and
Training Range (EGTTR) in the Gulf of Mexico
Source: 79 FR 13588, Mar. 11, 2014, unless otherwise noted.
Sec. 217.110 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the U.S. Air Force for
the incidental taking of marine mammals that occurs in the area outlined
in paragraph (b) of this section and that occur incidental to the
activities described in paragraph (c) of this section.
(b) The taking of marine mammals by the Air Force is only authorized
if it occurs within the Eglin Air Force Base Gulf Test and Training
Range (as depicted in Figure 1-9 of the Air Force's Request for a Letter
of Authorization). The EGTTR is the airspace over the Gulf of Mexico
beyond 3 nm from shore that is controlled by Eglin Air Force Base. The
specified activities will take place within the boundaries of Warning
Area W-151. The inshore and offshore boundaries of W-151 are roughly
parallel to the shoreline contour. The shoreward boundary is 3 nm from
shore, while the seaward boundary extends approximately 85 to 100 nm
offshore, depending on the specific location. W-151 has a surface area
of approximately 10,247 nm\2\ (35,145 km\2\), and includes water depths
ranging from approximately 20 to 700 m.
(c) The taking of marine mammals by the Air Force is only authorized
of it occurs incidental to the following activities within the
designated amounts of use:
(1) The use of the following Precision Strike Weapons (PSWs) for PSW
training activities, in the amounts indicated below:
(i) Joint Air-to-Surface Stand-Off Missile (JASSM) AGM-158 A and B--
two live shots (single) and 4 inert shots (single) per year;
(ii) Small-diameter bomb (SDB) GBU-39/B--six live shots per year,
with
[[Page 108]]
two of the shots occurring simultaneously, and 12 inert shots per year,
with up to two occurring simultaneously.
(2) The use of the following ordnance for daytime Air-to-Surface
(AS) Gunnery training activities, in the amounts indicated below:
(i) 105 mm HE Full Up (FU)--25 missions per year with 30 rounds per
mission;
(ii) 40 mm HE--25 missions per year with 64 rounds per mission;
(iii) 25 mm HE--25 mission per year with 560 rounds per mission.
(3) The use of the following ordnance for nighttime Air-to-Surface
(AS) Gunnery training activities, in the amounts indicated below:
(i) 105 mm HE Training Round (TR)--45 missions per year with 30
rounds per mission;
(ii) 40 mm HE--45 missions per year with 64 rounds per mission;
(iii) 25 mm HE--45 mission per year with 560 rounds per mission.
Sec. 217.111 Effective dates.
Regulations in this subpart are effective March 11, 2014 and
applicable to Eglin AFB March 5, 2014, through March 4, 2019.
Sec. 217.112 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Sec. Sec.
216.106 and 217.117 of this chapter, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine
mammals by Level A and Level B harassment within the area described in
Sec. 217.110(b) of this chapter, provided the activity is in compliance
with all terms, conditions, and requirements of this subpart and the
appropriate Letter of Authorization.
(b) The activities identified in Sec. 217.110(c) of this chapter
must be conducted in a manner that minimizes, to the greatest extent
practicable, any adverse impact on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 217.110(c) is limited to the following species, by
the indicated method of take and the indicated number:
(1) Level B Harassment:
(i) Atlantic bottlenose dolphin (Tursiops truncatus)--2,200 (an
average of 444 annually);
(ii) Atlantic spotted dolphin (Stenella frontalis)--1,765 (an
average of 353 annually);
(iii) Pantropical spotted dolphin (S. attenuate)--15 (an average of
3 annually);
(iv) Spinner dolphin (S. longirostris)--15 (an average of 3
annually);
(v) Dwarf or pygmy sperm whale (Kogia simus or Kogia breviceps)--10
(an average of 2 annually).
(2) Level A Harassment:
(i) Atlantic bottlenose dolphin (Tursiops truncatus)--25 (an average
of 5 annually);
(ii) Atlantic spotted dolphin (Stenella frontalis)--20 (an average
of 4 annually).
Sec. 217.113 Prohibitions.
No person in connection with the activities described in Sec.
217.110 shall:
(a) Take any marine mammal not specified in Sec. 217.112(c);
(b) Take any marine mammal specified in Sec. 217.112(c) other than
by incidental take as specified in Sec. 217.112(c)(1) and (c)(2);
(c) Take a marine mammal specified in Sec. 217.112(c) 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 this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.117 of this chapter.
Sec. 217.114 Mitigation.
(a) The activities identified in Sec. 217.110(c) 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. 217.110(c), the mitigation measures contained in the
Letter of Authorization issued under Sec. Sec. 216.106 and 217.117 of
this chapter must be implemented.
(b) Precision Strike Weapon Missions:
(1) Safety Zones;
(i) For the JASSM, the Air Force must establish and monitor a safety
zone for marine mammals with a radius of 2.0 nm (3.7 km) from the center
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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.,
(ii) For the SDB, the holder of the Letter of Authorization must
establish and monitor a safety zone 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.
(2) For PSW missions, the holder of the Letter of Authorization must
comply with the monitoring requirements, including pre-mission
monitoring, set forth in Sec. 217.115(c).
(3) When detonating explosives:
(i) If any marine mammals or sea turtles are observed within the
designated safety zone or the buffer zone prescribed in the condition in
paragraph (b)(1) of this section or that are on a course that will put
them within the safety zone prior to JASSM or SDB launch, the launching
must be delayed until all marine mammals are no longer within the
designated safety zone.
(ii) 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.
(iii) If large Sargassum rafts or large concentrations of jellyfish
are observed within the safety zone, the mission launch will not
continue until the Sargassum rafts or jellyfish that caused the
postponement are confirmed to be outside of the safety zone due to the
current and/or wind moving them out of the mission area.
(iv) If weather and/or sea conditions preclude adequate aerial
surveillance for detecting marine mammals or sea turtles, 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.
(v) 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.
217.115.
(vi) 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 to avoid unauthorized take must be made
prior to conducting the next mission detonation.
(vii) Mission launches must be delayed if aerial or vessel
monitoring programs described under Sec. 217.115 cannot be fully
carried out.
(c) Air-to-Surface Gunnery Missions:
(1) Sea State Restrictions:
(i) If daytime weather and/or sea conditions preclude adequate
aerial surveillance for detecting marine mammals and other marine life,
air-to-surface gunnery exercises must be delayed until adequate sea
conditions exist for aerial surveillance to be undertaken. Daytime air-
to-surface gunnery exercises will be conducted only when sea surface
conditions do not exceed Beaufort sea state 4 (i.e., wind speed 13-18
mph (11-16 knots); wave height 1 m (3.3 ft)), the visibility is 5.6 km
(3 nm) or greater, and the ceiling is 305 m (1,000 ft) or greater.
(ii) [Reserved]
(2) Pre-mission and Mission Monitoring:
(i) The aircrews of the air-to-surface gunnery missions will
initiate location and surveillance of a suitable firing site immediately
after exiting U.S. territorial waters (12 nm).
(ii) Prior to each firing event, the aircraft crew will conduct a
visual and/or instrument survey of the 5-nm (9.3-km) wide prospective
target area to locate any marine mammals that may be present.
(A) The AC-130 gunship will conduct at least two complete orbits at
a minimum safe airspeed around a prospective target area at an altitude
of approximately 6,000 ft (1,829 m).
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(B) If marine mammals are not detected, the AC-130 can then continue
orbiting the selected target point as it climbs to the mission testing
altitude.
(C) During the low altitude orbits and the climb to testing
altitude, aircraft crew will scan the sea surface within the aircraft's
orbit circle for the presence of marine mammals.
(D) The AC-130's optical and electronic sensors must be employed for
target detection, especially at night when visibility will be poor.
(E) If any marine mammals are detected within the AC-130's orbit
circle, either during initial clearance or after commencement of live
firing, the mission will be immediately halted and relocated as
necessary or suspended until the marine mammal has left the area. If
relocated to another target area, the clearance procedures described in
paragraph (c)(2)(ii) of this section must be repeated.
(F) If multiple firing events occur within the same flight, these
clearance procedures must precede each event.
(iii) If no marine mammals are detected, gunnery exercises may begin
with the deployment of MK-25 flares into the center of the designated 5-
nm target area.
(3) Operational Mitigation Measures:
(i) Ramp-up air-to-surface gunnery firing activities by beginning
with the lowest caliber monition and proceeding to the highest, which
means the munitions would be fired in the following order: 25 mm; 40 mm;
and 105 mm.
(ii) Air-to-surface gunnery exercises conducted after sunset must
use the 105-mm training round instead of the 105-mm full up round.
(iii) One mission per year may be conducted beyond the 200 m
isobaths, which is south of a line delineating the shelf break with
coordinates of 29 deg.42.73' N, 86 deg.48.27' W and 29 deg.12.73' N,
85 deg.59.88' W (Figure 1-12 in Eglin AFB's LOA application). The single
mission beyond the shelf break will occur during daylight hours only.
(4) Post-mission Monitoring:
(i) Aircrews will initiate the post-mission clearance procedures
beginning at the operational altitude of approximately 15,000 to 20,000
ft (4572 to 6096 m) elevation, and then initiate a spiraling descent
down to an observation altitude of approximately 6,000 ft (1,829 m)
elevation. Rates of descent will occur over a 3- to 5-minute time frame.
(ii) If post-detonation surveys determine that an 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 to avoid unauthorized take must be made,
prior to conducting the next air-to-surface gunnery exercise.
Sec. 217.115 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. Sec. 216.106 and 217.117 of this chapter for activities described
in Sec. 217.110(c) is required to conduct the monitoring and reporting
measures specified in this section and Sec. 217.114 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 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
Director, Office of Protected Resources, National Marine Fisheries
Service, or designee, by letter or telephone (301-427-8401), at least 2
weeks prior to any modification to the activity identified in Sec.
217.110(c) that has the potential to result in the serious injury,
mortality or Level A or Level B harassment of a marine mammal that was
not identified and addressed previously.
(c) Monitoring Procedures for PSW Missions:
(1) The Holder of this Authorization must:
(i) Designate qualified on-site individual(s) to record the effects
of mission launches on marine mammals that inhabit the northern Gulf of
Mexico;
(ii) Have on-site individuals, approved in advance by the National
Marine Fisheries Service, to conduct the mitigation, monitoring and
reporting activities specified in this subpart and
[[Page 111]]
in the Letter of Authorization issued pursuant to Sec. Sec. 216.106 and
217.117 of this chapter.
(iii) 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.
(iv) Conduct shipboard monitoring to reduce impacts to protected
species. Trained 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).
(2) 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.
(3) 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 sea
turtles, the presence of large Sargassum mats, seabirds and jellyfish
aggregations and overall environmental conditions (visibility, sea
state, etc.). This information will be relayed to the lead scientist.
(4) Three Hours Prior to Mission:
(i) 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.
(ii) Shipboard observers will monitor the safety and buffer zone,
and the lead scientist will enter all marine mammals and sea turtle
sightings, including the time of sighting and the direction of travel,
into a marine animal tracking and sighting database.
(5) One to 1.5 Hours Prior to Mission Launch:
(i) 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.
(ii) 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.
(6) Post-mission monitoring:
(i) 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.
(ii) The holder of the Letter of Authorization will closely
coordinate mission launches with marine animal stranding networks.
(iii) The monitoring team will document any dead or injured marine
mammals or turtles and, if practicable, recover and examine any dead
animals.
(d) Monitoring Procedures for A-S Gunnery Missions:
(1) In addition to the monitoring requirements in 217.114(c), the
holder of the Letter of Authorization must:
(i) Cooperate with the National Marine Fisheries Service and any
other Federal, state or local agency monitoring the impacts of the
activity on marine mammals.
(ii) Require aircrews to initiate the post-mission clearance
procedures beginning at the operational altitude of approximately 15,000
to 20,000 ft (4572 to 6096 m) elevation, and then initiate a spiraling
descent down to an observation altitude of approximately 6,000 ft (1,829
m) elevation. Rates of descent will occur over a 3- to 5-minute time
frame.
(iii) Track their use of the EGTTR for test firing missions and
marine
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mammal observations, through the use of mission reporting forms.
(iv) Coordinate air-to-surface gunnery exercises with future flight
activities to provide supplemental post-mission observations of marine
mammals in the operations area of the exercise.
(2) [Reserved]
(e) In accordance with provisions in Sec. 217.118(b)(2), the Holder
of the Letter of Authorization must conduct the research required under
the Letter of Authorization.
(f) Reporting:
(1) Unless specified otherwise in the Letter of Authorization, the
Holder of the Letter of Authorization must conduct all of the monitoring
and reporting required under the LOA and submit an annual report to the
Director, Office of Protected Resources, National Marine Fisheries
Service by a date certain specified in the LOA. This report must include
the following information:
(i) Date and time of each PSW/air-to-surface gunnery exercise;
(ii) A complete description of the pre-exercise and post-exercise
activities related to mitigating and monitoring the effects of PSW/air-
to-surface gunnery exercises on marine mammal populations;
(iii) Results of the monitoring program, including numbers by
species/stock of any marine mammals noted injured or killed as a result
of the training exercises and number of marine mammals (by species if
possible) that may have been harassed due to presence within the
applicable safety zone;
(iv) A detailed assessment of the effectiveness of sensor-based
monitoring in detecting marine mammals in the area of air-to-surface
gunnery operations; and
(v) Results of coordination with coastal marine mammal stranding
networks.
(2) The final comprehensive report on all marine mammal monitoring
and research conducted during the applicability period of this subpart
must be submitted to the Director, Office of Protected Resources,
National Marine Fisheries Service at least 240 days prior to expiration
of applicability of this subpart or 240 days after the expiration of
applicability of this subpart if new regulations will not be requested.
Sec. 217.116 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to this subpart, the
U.S. citizen (as defined at Sec. 216.103 of this chapter) conducting
the activities identified in Sec. 217.110(c) must apply for and obtain
either an initial Letter of Authorization in accordance with Sec. Sec.
216.106 and 217.117 of this chapter or a renewal under Sec. 217.118.
Sec. 217.117 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.
(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.
(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 species or stock of affected marine mammals.
Sec. 217.118 Renewals and Modifications of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.117 of this chapter for the activities identified in Sec.
217.110(c) will be renewed or modified upon request of the applicant,
provided that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for this subpart (excluding changes made
pursuant to adaptive management) and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous Letter of Authorization under this
subpart were implemented.
[[Page 113]]
(b) For Letter of Authorization modifications or renewal requests by
the applicant that include changes to the activity or the mitigation,
monitoring, or reporting (excluding changes made pursuant to adaptive
management) that do not change the findings made for the regulations or
result in no more than a minor change in the total estimated number of
takes (or distribution by species or years), NMFS may publish a notice
of a proposed Letter of Authorization in the Federal Register, including
the associate analysis illustrating the change, and solicit public
comment before issuing the Letter of Authorization.
(c) A Letter of Authorization issued under Sec. Sec. 216.106 and
217.117 of this chapter for the activity identified in Sec. 217.110(c)
may be modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with the U.S. Air
Force regarding the practicability of the modifications) if doing so
creates a reasonable likelihood of more effectively accomplishing the
goals of mitigation and monitoring. Below are some of the possible
sources of new data that could contribute to the decision to modify the
mitigation or monitoring measures:
(i) Results from the U.S. Air Force's monitoring from the previous
year;
(ii) Results from marine mammal and sound research; or
(iii) Any information which reveals that marine mammals may have
been taken in a manner, extent or number not authorized by this subpart
or subsequent Letters of Authorization.
(2) Emergencies. If NMFS 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. 217.112(c), a Letter of Authorization
issued pursuant to Sec. Sec. 216.106 and 217.117 of this chapter 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 M [Reserved]
Subpart N_Taking Marine Mammals Incidental to Seismic Surveys in Cook
Inlet, Alaska
Source: 81 FR 47275, July 20, 2016, unless otherwise noted.
Effective Date Note: At 81 FR 47275, July 20, 2016, subpart N was
added, effective Aug. 19, 2016, through July 20, 2021.
Sec. 217.130 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Apache Alaska
Corporation (Apache), and those persons it authorizes to conduct
activities on its behalf, for the taking of marine mammals that occurs
in the area outlined in paragraph (b) of this section incidental to
Apache's oil and gas exploration seismic survey program operations.
(b) The taking of marine mammals by Apache may be authorized in a
Letter of Authorization (LOA) only if it occurs in Cook Inlet, Alaska.
Sec. 217.131 Effective dates.
Regulations in this subpart are effective from August 19, 2016
through July 20, 2021.
Sec. 217.132 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. 216.106 of this chapter and
Sec. 217.136, the Holder of the LOA (hereinafter ``Apache'') may
incidentally, but not intentionally, take marine mammals within the area
described in Sec. 217.130(b), provided the activity is in compliance
with all terms, conditions, and requirements of the regulations in this
subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.130(a) is limited to the indicated number of
takes of individuals of the following species and is limited to Level B
harassment:
(1) Cetaceans:
(i) Beluga whale (Delphinapterus leucas)--150 over the five-year
period, with no more than 30 in any year;
(ii) Harbor porpoise (Phocoena phocoena)--1,455 over the five-year
period, with an average of 283 annually;
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(iii) Killer whale (Orcinus orca)--350 over the five-year period,
with an average of 70 annually;
(iv) Gray whale (Eschrichtius robustus)--40 over the five-year
period, with an average of 8 annually;
(v) Humpback whale (Megaptera noveangliae)--10 over the five-year
period, with an average of 2 annually;
(vi) Minke whale (Balaenoptera acutorostra)--5 over the five-year
period, with an average of 1 annually;
(vii) Dall's porpoise (Phocoenoides dalli)--85 over the five-year
period, with an average of 17 annually;
(2) Pinnipeds:
(i) Harbor seal (Phoca vitulina)--28, 625 over the five-year period,
with no more than 5,725 in any year; and
(ii) Steller sea lion (Eumetopias jubatus)--20.
Sec. 217.133 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.130 and authorized
by a LOA issued under Sec. 216.106 of this chapter and Sec. 217.136,
no person in connection with the activities described in Sec. 217.130
may:
(a) Take any marine mammal not specified in Sec. 217.132(b);
(b) Take any marine mammal specified in Sec. 217.132(b) other than
by incidental Level B harassment;
(c) Take any marine mammal in excedance of the numbers specified in
217.132(b)(1);
(d) Take a marine mammal specified in Sec. 217.132(b) if the
National Marine Fisheries Service (NMFS) determines such taking is
resulting or will result in more than a negligible impact on the species
or stocks of such marine mammal;
(e) Take a marine mammal specified in Sec. 217.132(b) if NMFS
determines such taking is resulting in or will result in an unmitigable
adverse impact on the species or stock of such marine mammal for taking
for subsistence uses; or
(f) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. 216.106 and
Sec. 217.136 of this chapter.
Sec. 217.134 Mitigation requirements.
When conducting the activities identified in Sec. 217.130(a), the
mitigation measures contained in any LOA issued under Sec. 216.106 and
Sec. 217.136 of this chapter must be implemented. These mitigation
measures include but are not limited to:
(a) General conditions:
(1) If any marine mammal species not listed in Sec. 217.132(b) are
observed during conduct of the activities identified in Sec. 217.130(a)
and are likely to be exposed to sound pressure levels (SPLs) greater
than or equal to 160 dB re 1 Pa (rms), Apache must avoid such
exposure (e.g., by altering speed or course or by power down or shutdown
of the sound source).
(2) If the allowable number of takes on an annual basis listed for
any marine mammal species in Sec. 217.132(b) is exceeded, or if any
marine mammal species not listed in Sec. 217.132(b) is exposed to SPLs
greater than or equal to 160 dB re 1 Pa (rms), Apache shall
immediately cease survey operations involving the use of active sound
sources (e.g., airguns and pingers), record the observation, and notify
NMFS Office of Protected Resources.
(3) Apache must notify the Office of Protected Resources, NMFS, at
least 48 hours prior to the start of seismic survey activities each
year.
(4) Apache shall conduct briefings as necessary between vessel
crews, marine mammal monitoring team, and other relevant personnel prior
to the start of all survey activity, and when new personnel join the
work, in order to explain responsibilities, communication procedures,
marine mammal monitoring protocol, operational procedures, and reporting
requirements.
(b) Visual monitoring. (1) Apache shall establish zones
corresponding to the area around the source within which SPLs are
expected to equal or exceed relevant acoustic criteria for Level A and
Level B harassment. These zones shall be established as exclusion zones
(shutdown zones, described in in Sec. 217.134 (c)(2)) to avoid Level A
harassment of any marine mammal, Level B harassment of beluga whales, or
Level B harassment of aggregations of five or more killer whales or
harbor porpoises. For all marine mammals other than beluga whales or
aggregations of five or more harbor porpoises or killer whales, the
Level B harassment zone shall be established as a disturbance
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zone and monitored as described in Sec. 217.135(a)(1). These zones
shall be defined in each annual LOA to allow for incorporation of new
field measurements.
(2) Vessel-based monitoring for marine mammals must be conducted
before, during, and after all activity identified in Sec. 217.130(a)
that is conducted during daylight hours (defined as nautical twilight-
dawn to nautical twilight-dusk), and shall begin at least thirty minutes
prior to the beginning of survey activity, continue throughout all
survey activity that occurs during daylight hours, and conclude no less
than thirty minutes following the cessation of survey activity. Apache
shall use a sufficient number of qualified protected species observers
(PSO), at least two PSOs per vessel, to ensure continuous visual
observation coverage during all periods of daylight survey operations
with maximum limits of four consecutive hours on watch and twelve hours
of watch time per day per PSO. One PSO must be a supervisory field crew
leader. A minimum of two qualified PSOs shall be on watch at all times
during daylight hours on each source and support vessel (except during
brief meal and restroom breaks, when at least one PSO shall be on
watch).
(i) A qualified PSO is a third-party trained biologist, with prior
experience as a PSO during seismic surveys and the following minimum
qualifications:
(A) Visual acuity in both eyes (correction is permissible)
sufficient for discernment of moving targets at the water's surface with
ability to estimate target size and distance; use of binoculars may be
necessary to correctly identify the target;
(B) Advanced education in biological science or related field
(undergraduate degree or higher required);
(C) Experience and ability to conduct field observations and collect
data according to assigned protocols (this may include academic
experience);
(D) Experience or training in the field identification of marine
mammals, including the identification of behaviors;
(E) Sufficient training, orientation, or experience with the survey
operation to provide for personal safety during observations;
(F) Writing skills sufficient to prepare a report of observations
including but not limited to the number and species of marine mammals
observed; dates and times when survey activities were conducted; dates
and times when survey activities were suspended to avoid exposure of
marine mammals to sound within defined exclusion zones; and marine
mammal behavior; and
(G) Ability to communicate orally, by radio or in person, with
project personnel to provide real-time information on marine mammals
observed in the area as necessary.
(ii) PSOs must have access to binoculars (7 x 50 with reticle
rangefinder; Fujinon or equivalent quality), and optical rangefinders,
and shall scan the surrounding waters from the best available suitable
vantage point with the naked eye and binoculars. At least one PSO shall
scan the surrounding waters during all daylight hours using bigeye
binoculars.
(iii) PSOs shall also conduct visual monitoring:
(A) While the airgun array and nodes are being deployed or recovered
from the water; and
(B) During periods of good visibility when the sound sources are not
operating for comparison of animal abundance and behavior.
(iv) PSOs shall be on watch at all times during daylight hours when
survey operations are being conducted, unless conditions (e.g., fog,
rain, darkness) make observations impossible. The lead PSO on duty shall
make this determination. If conditions deteriorate during daylight hours
such that the sea surface observations are halted, visual observations
must resume as soon as conditions permit.
(3) Survey activity must begin during periods of good visibility,
which is defined as daylight hours when weather (e.g., fog, rain) does
not obscure the relevant exclusion zones within maximum line-of-sight.
In order to begin survey activity, the relevant taxa-specific exclusion
zones must be clear of marine mammals for not less than thirty minutes.
If marine mammals are present within or are observed approaching the
relevant exclusion zone during this
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thirty-minute pre-clearance period, the start of survey activity shall
be delayed until the animals are observed leaving the zone of their own
volition and/or outside the zone or until fifteen minutes (for pinnipeds
and harbor porpoises) or thirty minutes (for beluga whales, killer
whales, and gray whales) have elapsed without observing the animal.
While activities will be permitted to continue during low-visibility
conditions, they must have been initiated following proper clearance of
the exclusion zone under acceptable observation conditions and must be
restarted, if shut down for greater than ten minutes for any reason,
using the appropriate exclusion zone clearance procedures.
(c) Ramp-up and shutdown. (1) Survey activity involving the full-
power airgun array or shallow-water source must be initiated, following
appropriate clearance of the exclusion zone, using accepted ramp-up
procedures. Ramp-up is required at the start of survey activity and at
any time following a shutdown of ten minutes or greater. Ramp-up shall
be implemented by starting the smallest single gun available and
increasing the operational array volume in a defined sequence such that
the source level of the array shall increase in steps not exceeding
approximately 6 dB per five-minute period. PSOs shall continue
monitoring the relevant exclusion zones throughout the ramp-up process
and, if marine mammals are observed within or approaching the zones, a
power down or shutdown shall be implemented and ramp-up restarted
following appropriate exclusion zone clearance procedures as described
in paragraph (b)(3) of this section.
(2) Apache must shut down or power down the source, as appropriate,
immediately upon detection of any marine mammal approaching or within
the relevant Level A exclusion zone or upon detection of any beluga
whale or aggregation of five or more harbor porpoises or killer whales
approaching or within the relevant Level B exclusion zone. Power down is
defined as reduction of total airgun array volume from either the full-
power airgun array (2,400 in\3\) or the shallow-water source (440 in\3\)
to a single mitigation gun (maximum 10 in\3\). Power down must be
followed by shutdown in the event that the animal(s) approach the
exclusion zones defined for the mitigation gun. Detection of any marine
mammal within an exclusion zone shall be recorded and reported weekly,
as described in Sec. 217.135(c)(2), to NMFS Office of Protected
Resources.
(i) When a requirement for power down or shutdown is triggered, the
call for implementation shall be made by the lead PSO on duty and Apache
shall comply. Any disagreement with a determination made by the lead PSO
on duty shall be discussed after implementation of power down or
shutdown, as appropriate.
(ii) Following a power down or shutdown not exceeding ten minutes,
Apache shall follow the ramp-up procedure described in paragraph (c)(1)
of this section to return to full-power operation.
(iii) Following a shutdown exceeding ten minutes, Apache shall
follow the exclusion zone clearance, described in paragraph (b)(3) of
this section, and ramp-up procedures, described in paragraph (c)(1) of
this section, before returning to full-power operation.
(3) Survey operations may be conducted during low-visibility
conditions (e.g., darkness, fog, rain) only when such activity was
initiated following proper clearance of the exclusion zone under
acceptable observation conditions, as described in paragraph (b)(3) of
this section, and there has not been a shutdown exceeding ten minutes.
Passive acoustic monitoring is required during all non-daylight hours.
Following a shutdown exceeding ten minutes during low-visibility
conditions, survey operations must be suspended until the return of good
visibility or the use of passive acoustic monitoring must be
implemented. Use of a NMFS-approved passive acoustic monitoring scheme,
which will be detailed in each LOA, monitored by a trained PSO, will be
used to listen for marine mammal vocalizations. If no vocalizations are
observed for 30 minutes, Apache may consider the zone clear and commence
ramp-up of airguns. During low-visibility conditions, vessel bridge crew
must implement shutdown procedures if marine mammals are observed.
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(d) Additional mitigation. (1) The mitigation airgun must be
operated at no more than approximately one shot per minute, and use of
the gun may not exceed three consecutive hours. Ramp-up may not be used
to circumvent the three-hour limitation on mitigation gun usage by
returning guns to higher power momentarily and then returning to
mitigation airgun.
(2) Apache shall alter speed or course during seismic operations if
a marine mammal, based on its position and relative motion, appears
likely to enter the relevant exclusion zone and such alteration may
result in the animal not entering the zone. If speed or course
alteration is not safe or practicable, or if after alteration the marine
mammal still appears likely to enter the zone, power down or shutdown
must be implemented.
(3) Apache shall not operate airguns within 16 km of the Mean Lower
low water (MLLW) line of the Susitna Delta (Beluga River to the Little
Susitna River) between April 15 and October 15.
(4) Apache must suspend survey operations if a live marine mammal
stranding is reported within a distance of two times the 160dB isopleth
of the seismic source vessel coincident to or within 72 hours of survey
activities involving the use of airguns, regardless of any suspected
cause of the stranding. A live stranding event is defined as a marine
mammal found on a beach or shore and unable to return to the water; on a
beach or shore and able to return to the water but in apparent need of
medical attention; or in the water but unable to return to its natural
habitat under its own power or without assistance.
(i) Apache must immediately implement a shutdown of the airgun array
upon becoming aware of the live stranding event within 19 km of the
seismic array.
(ii) Shutdown procedures shall remain in effect until NMFS
determines that all live animals involved in the stranding have left the
area (either of their own volition or following responder assistance).
(iii) Within 48 hours of the notification of the live stranding
event, Apache must inform NMFS where and when they were operating
airguns, beginning 72 hours before the stranding was first observed, and
at what discharge volumes.
(iv) Apache must appoint a contact who can be reached at any time
for notification of live stranding events. Immediately upon notification
of the live stranding event, this person must order the immediate
shutdown of the survey operations.
Sec. 217.135 Requirements for monitoring and reporting.
(a) Visual monitoring program. (1) Disturbance zones shall be
established as described in Sec. 217.134(b)(1), and shall encompass the
Level B harassment zones not defined as exclusion zones in Sec.
217.134(b)(1). These zones shall be monitored to maximum line-of-sight
distance from established vessel- and shore-based monitoring locations.
If belugas or groups of five or more killer whales or harbor porpoises
are observed approaching the 180 dB exclusion zone, operations will
power down or shut down. If marine mammals other than beluga whales or
aggregations of five or greater harbor porpoises or killer whales are
observed within the 160 dB disturbance zone, the observation shall be
recorded and communicated as necessary to other PSOs responsible for
implementing shutdown/power down requirements and any behaviors
documented.
(2) Apache shall utilize a shore-based station to visually monitor
for marine mammals. The shore-based station must be staffed by PSOs
under the same minimum requirements described in Sec. 217.134(b)(2),
must be located at an appropriate height to monitor the area ensonified
by that day's survey operations, must be of sufficient height to observe
marine mammals within the ensonified area; and must be equipped with
pedestal-mounted bigeye (25 x 150) binoculars. The shore-based PSOs
shall scan the defined exclusion and disturbance zones prior to, during,
and after survey operations, and shall be in contact with vessel-based
PSOs via radio to communicate sightings of marine mammals approaching or
within the defined zones.
(3) When weather conditions allow for safety, Apache shall utilize
helicopter
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or fixed-wing aircraft to conduct daily aerial surveys of the area that
they expect to survey prior to the commencement of operations in order
to identify locations of beluga whale aggregations (five or more whales)
or cow-calf pairs. Daily surveys that cover all the area potentially
surveyed by vessel in that particular day shall be scheduled to occur at
least thirty but no more than 120 minutes prior to any seismic survey-
related activities (including but not limited to node laying/retrieval
or airgun operations) and surveys of similar size shall also occur on
days when there may be no seismic activities. Additionally, weekly
comprehensive aerial surveys shall occur along and parallel to the
shoreline throughout the project area as well as the eastern and western
shores of central and northern Cook Inlet in the vicinity of the survey
area.
(i) When weather conditions allow for safety, aerial surveys shall
fly at an altitude of 305 m (1,000 ft). In the event of a marine mammal
sighting, aircraft shall attempt to maintain a lateral distance of 457 m
(1,500 ft) from the animal(s). Aircraft shall avoid approaching marine
mammals head-on, flying over or passing the shadow of the aircraft over
the animal(s).
(ii) [Reserved]
(4) PSOs must use NMFS-approved data forms and shall record the
following information:
(i) Effort information, including vessel name; PSO name; survey
type; date; time when survey (observing and activities) began and ended;
vessel location (latitude/longitude) when survey (observing and
activities) began and ended; vessel heading and speed (knots).
(ii) Environmental conditions while on visual survey, including wind
speed and direction, Beaufort sea state, Beaufort wind force, swell
height, weather conditions, ice cover (percent of surface, ice type, and
distance to ice if applicable), cloud cover, sun glare, and overall
visibility to the horizon (in distance).
(iii) Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions).
(iv) Activity information, such as the number and volume of airguns
operating in the array, tow depth of the array, and any other notes of
significance (e.g., pre-ramp-up survey, ramp-up, power down, shutdown,
testing, shooting, ramp-up completion, end of operations, nodes).
(v) When a marine mammal is observed, the following information
shall be recorded:
(A) Information related to the PSO including: Watch status (sighting
made by PSO on/off effort, opportunistic, crew, alternate vessel/
platform, aerial, land); PSO who sighted the animal; time of sighting;
(B) Vessel information including: Vessel location at time of
sighting; water depth; direction of vessel's travel (compass direction);
(C) Mammal-specific physical observations including: Direction of
animal's travel relative to the vessel (drawing is preferred); pace of
the animal; estimated distance to the animal and its heading relative to
vessel at initial sighting; identification of the animal (genus/species/
sub-species, lowest possible taxonomic level, or unidentified; also note
the composition of the group if there is a mix of species); estimated
number of animals (high/low/best); estimated number of animals by cohort
(when possible; adults, yearlings, juveniles, calves, group composition,
etc.); description (as many distinguishing features as possible of each
individual seen, including length, shape, color, pattern, scars or
markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
(D) Mammal-specific behavioral observations including: Detailed
behavioral observations (e.g., number of blows, number of surfaces,
breaching, spyhopping, diving, feeding, traveling; as explicit and
detailed as possible; note any observed changes in behavior); animal's
closest point of approach and/or closest distance from the center point
of the airgun array; platform activity at time of sighting (e.g.,
deploying, recovering, testing, shooting, data acquisition, other).
(vi) Description of any actions implemented in response to the
sighting
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(e.g., delays, power down, shutdown, ramp-up, speed or course
alteration); time and location of the action should also be recorded.
(vii) If mitigation action was not implemented when required,
description of circumstances.
(viii) Description of all use of mitigation gun including running
time, start and stop time, and reason for implementation.
(5) The data listed in Sec. 217.135(a)(4)(i) and (ii) shall also be
recorded at the start and end of each watch and during a watch whenever
there is a change in one or more of the variables.
(b) Onshore seismic effort. (1) When conducting onshore seismic
effort, in the event that a shot hole charge depth of 10 m is not
consistently attainable due to loose sediments collapsing the bore hole,
a sound source verification study must be conducted on the new land-
based charge depths.
(2) [Reserved]
(c) Reporting. (1) Apache must immediately report to NMFS at such
time as 25 total beluga whales (cumulative total during period of
validity of annual LOA) have been detected within the 160-dB re 1
Pa (rms) exclusion zone, regardless of shutdown or power down
procedures implemented, during seismic survey operations.
(2) Apache must submit a weekly field report to NMFS Office of
Protected Resources each Thursday during the weeks when in-water seismic
survey activities take place. The weekly field reports shall summarize
species detected (number, location, distance from seismic vessel,
behavior), in-water activity occurring at the time of the sighting
(discharge volume of array at time of sighting, seismic activity at time
of sighting, visual plots of sightings, and number of power downs and
shutdowns), behavioral reactions to in-water activities, and the number
of marine mammals exposed to sound at or exceeding relevant thresholds.
Additionally, Apache must include which km\2\ grid cells were surveyed
during that week and the resulting number of belugas that may have been
taken using the Goetz et al. (2012) model. Apache must provide the
cells, corresponding density, and possible number of beluga exposures
using the Goetz model for that week, as well as the total from the
preceding weeks.
(3) Apache must submit a monthly report, no later than the fifteenth
of each month, to NMFS Office of Protected Resources for all months
during which in-water seismic survey activities occur. These reports
must summarize the information described in paragraph (a)(4) of this
section and shall also include:
(i) An estimate of the number (by species) of:
(A) Pinnipeds that have been exposed to sound (based on visual
observation) at received levels greater than or equal to 160 dB re 1
Pa (rms) and/or 190 dB re 1 Pa (rms) with a discussion
of any specific behaviors those individuals exhibited; and
(B) Cetaceans that have been exposed to sound (based on visual
observation) at received levels greater than or equal to 160 dB re 1
Pa (rms) and/or 180 dB re 1 Pa (rms) with a discussion
of any specific behaviors those individuals exhibited.
(ii) A description of the implementation and effectiveness of the
terms and conditions of the Biological Opinion's Incidental Take
Statement and mitigation measures of the LOA. For the Biological
Opinion, the report shall confirm the implementation of each Term and
Condition, as well as any conservation recommendations, and describe
their effectiveness in minimizing the adverse effects of the action on
Endangered Species Act-listed marine mammals.
(4) Apache shall submit an annual report to NMFS Office of Protected
Resources covering a given calendar year by October 31st annually. The
annual report shall include summaries of the information described in
paragraph (a)(4) of this section and shall also include:
(i) Summaries of monitoring effort (e.g., total hours, total
distances, and marine mammal distribution through the study period,
accounting for sea state and other factors affecting visibility and
detectability of marine mammals);
(ii) Analyses of the effects of various factors influencing
detectability of marine mammals (e.g., sea state, number of observers,
and fog/glare);
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(iii) Species composition, occurrence, and distribution of marine
mammal sightings, including date, water depth, numbers, age/size/gender
categories (if determinable), group sizes, and ice cover;
(iv) Analyses of the effects of survey operations; and
(v) Sighting rates of marine mammals during periods with and without
seismic survey activities (and other variables that could affect
detectability), such as:
(A) Initial sighting distances versus survey activity state;
(B) Closest point of approach versus survey activity state;
(C) Observed behaviors and types of movements versus survey activity
state;
(D) Numbers of sightings/individuals seen versus survey activity
state;
(E) Distribution around the source vessels versus survey activity
state; and
(F) Numbers of marine mammals (by species) detected in the 160, 180,
and 190 dB re 1 Pa (rms) zones.
(5) Apache shall submit a final annual report to the Office of
Protected Resources, NMFS, within thirty days after receiving comments
from NMFS on the draft report, by November 30th annually.
(d) Notification of dead or injured marine mammals. (1) In the event
that the specified activity clearly causes the take of a marine mammal
in a manner prohibited by this Authorization, such as an injury (Level A
harassment), serious injury, or mortality, Apache shall immediately
cease the specified activities and report the incident to the Office of
Protected Resources, NMFS, and the Alaska Regional Stranding
Coordinator, NMFS. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(iv) Description of marine mammal observations in the 24 hours
preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the
incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with Apache to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. Apache may not
resume their activities until notified by NMFS that they may do so.
(3) In the event that Apache discovers an injured or dead marine
mammal, and the lead PSO determines that the cause of the injury or
death is unknown and the death is relatively recent (e.g., in less than
a moderate state of decomposition), Apache shall immediately report the
incident to the Office of Protected Resources, NMFS, and the Alaska
Regional Stranding Coordinator, NMFS. The report must include the same
information identified in Sec. 217.135(d)(1). If the observed marine
mammal is dead, activities may continue while NMFS reviews the
circumstances of the incident. If the observed marine mammal is injured,
measures described in Sec. 217.134(d)(4) must be implemented. NMFS will
work with Apache to determine whether additional mitigation measures or
modifications to the activities are appropriate.
(4) In the event that Apache discovers an injured or dead marine
mammal, and the lead PSO determines that the injury or death is not
associated with or related to the activities authorized in the LOA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, scavenger damage), Apache shall report the incident to
the Office of Protected Resources, NMFS, and the Alaska Regional
Stranding Coordinator, NMFS, within 24 hours of the discovery. Apache
shall provide photographs or video footage or other documentation of the
stranded animal sighting to NMFS. If the observed marine mammal is dead,
activities may continue while NMFS reviews the circumstances of the
incident. If the observed marine
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mammal is injured, measures described in Sec. 217.134(d)(4) must be
implemented and Apache may not resume activities until notified by NMFS
that they may do so.
Sec. 217.136 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to this subpart,
Apache must apply for and obtain an LOA, as required by Sec. 216.106 of
this chapter.
(b) LOAs issued to Apache, unless suspended or revoked, may be
effective for a period of time not to exceed one year or the period of
validity of this subpart.
(c) An LOA application must be submitted to the Director, Office of
Protected Resources, NMFS, by December 31st of the year preceding the
desired start date.
(d) An LOA application must include the following information:
(1) The date(s), duration, and the area(s) where the activity will
occur;
(2) The species and/or stock(s) of marine mammals likely to be found
within each area;
(3) The estimated percentage and numbers of marine mammal species/
stocks potentially affected in each area for the period of effectiveness
of the Letter of Authorization.
(4) If an application is for an LOA renewal, it must meet the
requirements set forth in Sec. 217.137.
(e) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, Apache must apply
for and obtain a modification of the Letter of Authorization as
described in Sec. 217.137.
(f) An LOA will set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, their habitat, and on the availability of
the species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(g) Issuance of an LOA (including renewals and modifications) will
be based on a determination by NMFS that the level of taking will be
consistent with the findings made for the total taking allowable under
this subpart.
(h) If NMFS determines that the level of taking is resulting or may
result in more than a negligible impact on the species or stocks of such
marine mammal, the LOA may be modified or suspended after notice and a
public comment period.
(i) Notice of issuance or denial of a LOA shall be published in the
Federal Register within 30 days of a determination.
Sec. 217.137 Renewals and modifications of Letters of Authorization
and Adaptive Management.
(a) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.136 for the activity identified in Sec. 217.130(a) may be renewed
or modified upon request by the applicant, provided the following are
met (in addition to the determination in Sec. 216.136(e)):
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 217.130(a) will be undertaken and that
there will not be a substantial modification to the described work,
mitigation or monitoring undertaken during the upcoming or remaining LOA
period;
(2) Timely receipt (by the dates indicated) of monitoring reports,
as required under Sec. 217.135(c)(3).
(3) A determination by the NMFS that the mitigation, monitoring and
reporting measures required under Sec. 217.135(c) and the LOA issued
under Sec. 216.106 and Sec. 217.136, were undertaken and are expected
to be undertaken during the period of validity of the LOA.
(b) If a request for a renewal of a Letter of Authorization
indicates that a substantial modification, as determined by NMFS, 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 as well as the proposed
modification to the LOA. Review and comment on renewals of Letters of
Authorization are restricted to:
(1) New cited information and data indicating that the original
determinations made for the regulations are in need of reconsideration,
and
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(2) Proposed changes to the mitigation and monitoring requirements
contained in this subpart 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 within 30 days
of a determination.
(d) An LOA issued under Sec. 216.106 of this chapter and Sec.
217.136 for the activity identified in Sec. 217.130 may be modified by
NMFS under the following circumstances:
(1) Adaptive management. NMFS, in response to new information and in
consultation with Apache, may modify the mitigation or monitoring
measures in subsequent LOAs if doing so creates a reasonable likelihood
of more effectively accomplishing the goals of mitigation and
monitoring.
(i) Possible sources of new data that could contribute to the
decision to modify the mitigation or monitoring measures include:
(A) Results from Apache's monitoring from the previous year(s).
(B) Results from marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by this subpart or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) NMFS will withdraw or suspend an LOA if, after notice and
opportunity for public comment, NMFS determines this subpart is not
being substantially complied with or that the taking allowed is or may
be having more than a negligible impact on an affected species or stock
specified in Sec. 217.132(b) or an unmitigable adverse impact on the
availability of the species or stock for subsistence uses. The
requirement for notice and comment will not apply if NMFS determines
that an emergency exists that poses a significant risk to the well-being
of the species or stocks of marine mammals. Notice would be published in
the Federal Register within 30 days of such action.
Subpart O_Taking of Marine Mammals Incidental to Operation of Offshore
Oil and Gas Facilities in the U.S. Beaufort Sea
Source: 78 FR 75507, Dec. 12, 2013, unless otherwise noted.
Effective Date Note: At 78 FR 75507, Dec. 12, 2013, subpart O was
added, effective Jan. 13, 2014, through Jan. 14, 2019.
Sec. 217.140 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to BP Exploration
(Alaska) Inc. (BP) and those persons it authorizes to conduct activities
on its behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section and that occurs incidental to
operation of offshore oil and gas facilities in the U.S. Beaufort Sea,
Alaska, in the Northstar Development Area.
(b) The taking of marine mammals by BP may be authorized in a Letter
of Authorization only if it occurs in the geographic region that
encompasses the Northstar Oil and Gas Development area within state and/
or Federal waters in the U.S. Beaufort Sea.
Sec. 217.141 Effective dates.
Regulations in this subpart are effective from January 13, 2014
through January 14, 2019.
Sec. 217.142 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. Sec.
216.106 and 217.148 of this chapter, the Holder of the Letter of
Authorization (hereinafter ``BP'') may incidentally, but not
intentionally, take marine mammals within the area described in Sec.
217.140(b), provided the activity is in compliance with all terms,
conditions, and requirements of the regulations in this subpart and the
appropriate Letter of Authorization.
(b) The activities identified in Sec. 217.140(a) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
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(c) The incidental take of marine mammals under the activities
identified in Sec. 217.140(a) is limited to the following species and
by the indicated method and amount of take:
(1) Level B Harassment:
(i) Cetaceans:
(A) Bowhead whale (Balaena mysticetus)--75 (an average of 15
annually)
(B) Gray whale (Eschrichtius robustus)--10 (an average of 2
annually)
(C) Beluga whale (Delphinapterus leucas)--100 (an average of 20
annually)
(ii) Pinnipeds:
(A) Ringed seal (Phoca hispida)--155 (an average of 31 annually)
(B) Bearded seal (Erignathus barbatus)--25 (an average of 5
annually)
(C) Spotted seal (Phoca largha)--25 (an average of 5 annually)
(2) Level A Harassment and Mortality: Ringed seal--25 (an average of
5 annually)
Sec. 217.143 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.140 and authorized
by a Letter of Authorization issued under Sec. Sec. 216.106 and 217.148
of this chapter, no person in connection with the activities described
in Sec. 217.140 may:
(a) Take any marine mammal not specified in Sec. 217.142(c);
(b) Take any marine mammal specified in Sec. 217.142(c) other than
by incidental take as specified in Sec. 217.142(c)(1) and (c)(2);
(c) Take a marine mammal specified in Sec. 217.172(c) if such
taking results in more than a negligible impact on the species or stocks
of such marine mammal;
(d) Take a marine mammal specified in Sec. 217.172(c) if such
taking results in an unmitigable adverse impact on the species or stock
for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or a Letter of Authorization issued under
Sec. Sec. 216.106 and 217.148 of this chapter.
Sec. 217.144 Mitigation.
(a) When conducting the activities identified in Sec. 217.140(a),
the mitigation measures contained in the Letter of Authorization issued
under Sec. Sec. 216.106 and 217.148 of this chapter must be
implemented. These mitigation measures include but are not limited to:
(1) Ice-covered Season:
(i) In order to reduce the taking of ringed seals to the lowest
level practicable, BP must begin winter construction activities,
principally ice roads, as soon as possible once weather and ice
conditions permit such activity.
(ii) Any ice roads or other construction activities that are
initiated after March 1, in previously undisturbed areas in waters
deeper than 10 ft (3 m), must be surveyed, using trained dogs in order
to identify and avoid ringed seal structures by a minimum of 492 ft (150
m).
(iii) After March 1 of each year, activities should avoid, to the
greatest extent practicable, disturbance of any located seal structure.
(2) Open-water Season:
(i) BP will establish and monitor, during all daylight hours, a 190
dB re 1 Pa (rms) exclusion zone for seals around the island for
all activities with sound pressure levels (SPLs) that are expected to
exceed that level in waters beyond the Northstar facility on Seal
Island.
(ii) BP will establish and monitor, during all daylight hours, a 180
dB re 1 Pa (rms) exclusion zone for cetaceans around the island
for all activities with SPLs that are expected to exceed that level in
waters beyond the Northstar facility at Seal Island.
(iii) If any marine mammals are observed within the relevant
exclusion zone, described in Sec. 217.144(a)(2)(i) or (a)(2)(ii), the
activity creating the noise will shutdown or reduce its SPL sufficiently
(i.e., power down) to ensure that received SPLs do not exceed those
prescribed SPL intensities at the affected marine mammal. The shutdown
or reduced SPL shall be maintained until such time as the observed
marine mammal(s) has been seen to have left the applicable exclusion
zone or until 15 minutes have elapsed in the case of a pinniped or
odontocete or 30 minutes in the case of a mysticete without resighting,
whichever occurs sooner.
(iv) The entire exclusion zones prescribed in Sec. 217.144(a)(2)(i)
or (a)(2)(ii) must be visible during the entire 30-
[[Page 124]]
minute pre-activity monitoring time period in order for the activity to
begin.
(v) BP shall employ a ramp-up technique at the beginning of each
day's in-water pile driving activities and if pile driving resumes after
it has ceased for more than 1 hour.
(A) If a vibratory driver is used, BP is required to initiate sound
from vibratory hammers for 15 seconds at reduced energy followed by a 1-
minute waiting period. The procedure shall be repeated two additional
times before full energy may be achieved.
(B) If a non-diesel impact hammer is used, BP is required to provide
an initial set of strikes from the impact hammer at reduced energy,
followed by a 1-minute waiting period, then two subsequent sets.
(C) If a diesel impact hammer is used, BP is required to turn on the
sound attenuation device for 15 seconds prior to initiating pile
driving.
(vi) New drilling into oil-bearing strata shall not take place
during either open-water or spring-time broken ice conditions.
(vii) All non-essential boats, barge, and air traffic will be
scheduled to avoid periods when bowhead whales are migrating through the
area where they may be affected by noise from these activities.
(3) Helicopter flights to support Northstar activities must be
limited to a corridor from Seal Island to the mainland, and, except when
limited by weather or personnel safety, must maintain a minimum altitude
of 1,000 ft (305 m), except during takeoff and landing.
(4) Additional mitigation measures as contained in a Letter of
Authorization issued under Sec. Sec. 216.106 and 217.148 of this
chapter.
(b) [Reserved]
Sec. 217.145 Measures to ensure availability of species for
subsistence uses.
When applying for a Letter of Authorization pursuant to Sec.
217.147 or a renewal of a Letter of Authorization pursuant to Sec.
217.149, BP 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 mammal species or stocks for
taking for subsistence uses. A plan shall 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 BP has taken and/or will take to
ensure that the proposed activities will not interfere with subsistence
whaling or sealing; and
(c) What plans BP has to continue to meet with the affected
communities to notify the communities of any changes in operation.
Sec. 217.146 Requirements for monitoring and reporting.
(a) BP must notify the Alaska Regional Office, NMFS, within 48 hours
of starting ice road construction, cessation of ice road usage, and the
commencement of icebreaking activities for the Northstar facility.
(b) BP must designate qualified, on-site individuals, approved in
advance by NMFS, to conduct the mitigation, monitoring, and reporting
activities specified in the Letter of Authorization issued under
Sec. Sec. 216.106 and 217.148 of this chapter.
(c) Monitoring measures during the ice-covered season shall include,
but are not limited to, the following:
(1) After March 1, trained dogs must be used to detect seal lairs in
previously undisturbed areas that may be potentially affected by on-ice
construction activity, if any. Surveys for seal structures should be
conducted to a minimum distance of 492 ft (150 m) from the outer edges
of any disturbance.
(2) If ice road construction occurs after March 1, conduct a follow-
up assessment in May of that year of the fate of all seal structures
located during monitoring conducted under paragraph (c)(1) of this
section near the physically disturbed areas.
(3) BP shall conduct acoustic measurements to document sound levels,
characteristics, and transmissions of airborne sounds with expected
source levels of 90 dBA or greater created by
[[Page 125]]
on-ice activity at Northstar that have not been measured in previous
years. In addition, BP shall conduct acoustic measurements to document
sound levels, characteristics, and transmissions of airborne sounds for
sources on Northstar Island with expected received levels at the water's
edge that exceed 90 dBA that have not been measured in previous years.
(d) Monitoring measures during the open-water season shall include,
but are not limited to, the following:
(1) Acoustic monitoring of the bowhead whale migration.
(2) BP shall monitor the exclusion zones of activities capable of
producing pulsed underwater sound with levels =180 or
=190 dB re 1 Pa (rms) at locations where cetaceans
or seals could be exposed. At least one on-island observer shall be
stationed at a location providing an unobstructed view of the predicted
exclusion zone. The observer(s) shall scan the exclusion zone
continuously for marine mammals for 30 minutes prior to the operation of
the sound source. Observations shall continue during all periods of
operation and for 30 minutes after the cessation of the activity. The
observer shall record the: species and numbers of marine mammals seen
within the 180 or 190 dB zones; bearing and distance of the marine
mammals from the observation point; and behavior of marine mammals and
any indication of disturbance reactions to the monitored activity.
(e) BP shall conduct any additional monitoring measures contained in
a Letter of Authorization issued under Sec. Sec. 216.106 and 217.148 of
this chapter.
(f) BP shall submit an annual report to NMFS within the time period
specified in a Letter of Authorization issued under Sec. Sec. 216.106
and 217.148 of this chapter.
(g) If specific mitigation and monitoring are required for
activities on the sea ice initiated after March 1 (requiring searches
with dogs for lairs), during the operation of strong sound sources
(requiring visual observations and shutdown procedures), or for the use
of new sound sources that have not previously been measured, then a
preliminary summary of the activity, method of monitoring, and
preliminary results shall be submitted to NMFS within 90 days after the
cessation of that activity. The complete description of methods,
results, and discussion shall be submitted as part of the annual report
described in paragraph (f) of this section.
(h) BP shall submit a draft comprehensive report to NMFS, Office of
Protected Resources, and NMFS, Alaska Regional Office (specific contact
information to be provided in Letter of Authorization), no later than
240 days prior to the expiration of the regulations in this subpart.
This comprehensive technical report shall provide full documentation of
methods, results, and interpretation of all monitoring during the first
four and a quarter years of the LOA. Before acceptance by NMFS as a
final comprehensive report, the draft comprehensive report shall be
subject to review and modification by NMFS scientists.
(i)(1) In the unanticipated event that Northstar operations clearly
causes the death of more than five ringed seals annually or the take of
a marine mammal in a manner prohibited by this final rule, such as an
injury (Level A harassment), serious injury or mortality (e.g., ship-
strike, gear interaction), BP shall immediately take steps to cease the
operations that caused the unauthorized take and report the incident as
soon as practicable and no later than 24 hours after the incident to the
Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, or his designee, the Alaska Regional Office, and the
Alaska Regional Stranding Coordinators (specific contact information to
be provided in Letter of Authorization). The report must include the
following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) The type of equipment involved in the incident;
(iii) Description of the incident;
(iv) Water depth, if relevant;
(v) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(vi) Species identification or description of the animal(s)
involved;
(vii) The fate of the animal(s); and
[[Page 126]]
(viii) Photographs or video footage of the animal (if equipment is
available).
(2) Activities shall not resume until NMFS is able to review the
circumstances causing the exceedance of the authorized take. NMFS will
work with BP to identify additional measures to minimize the likelihood
that more than five ringed seals will not be killed each year (or other
marine mammal species that may have been injured, seriously injured, or
killed) from BP's activities. BP may not resume their activities until
notified by NMFS via letter, email, or telephone.
(3) In the event that BP discovers an injured or dead marine mammal,
and it is determined that the cause of the injury or death is unknown
and the death is relatively recent (i.e., in less than a moderate state
of decomposition as described in the next paragraph), BP will report the
incident/discovery as soon as practicable and no later than 24 hours
after the incident/discovery to the Chief of the Permits and
Conservation Division, Office of Protected Resources, NMFS, by phone or
email, the Alaska Regional Office, and the NMFS Alaska Stranding Hotline
and/or by email to the Alaska Regional Stranding Coordinators (specific
contact information to be provided in Letter of Authorization). The
report must include the same information identified in Sec.
217.146(i)(1). Activities may continue while NMFS reviews the
circumstances of the incident. NMFS will work with BP to determine
whether modifications in the activities are appropriate.
(4) In the event that BP discovers an injured or dead marine mammal,
and it is determined that the injury or death is not associated with or
related to the activities authorized in this final rule (e.g.,
previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), BP shall report the incident to the
Chief of the Permits and Conservation Division, Office of Protected
Resources, NMFS, by phone or email and the NMFS Alaska Stranding Hotline
and/or by email to the Alaska Regional Stranding Coordinators (specific
contact information to be provided in Letter of Authorization), as soon
as practicable and no later than 24 hours after the discovery. BP shall
provide photographs or video footage (if available) or other
documentation of the stranded animal sighting to NMFS and the Marine
Mammal Stranding Network. Activities may continue while NMFS reviews the
circumstances of the incident.
Sec. 217.147 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. Citizen (as defined by Sec. 216.103 of this
chapter) conducting the activity identified in Sec. 217.140(a) (i.e.,
BP) must apply for and obtain either an initial Letter of Authorization
in accordance with Sec. 217.148 or a renewal under Sec. 217.149.
(b) [Reserved]
Sec. 217.148 Letters of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, shall be
valid for a period of time not to exceed the period of validity of this
subpart.
(b) The Letter of Authorization shall 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 shall 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) and will not have an
unmitigable adverse impact on the availability of species or stocks of
marine mammals for taking for subsistence uses.
Sec. 217.149 Renewal of Letters of Authorization and adaptive
management.
(a) A Letter of Authorization issued under Sec. 216.106 and Sec.
217.148 of this chapter for the activity identified in Sec. 217.140(a)
shall be renewed upon request by the applicant or determination by NMFS
and the applicant that modifications are appropriate pursuant
[[Page 127]]
to the adaptive management component of these regulations, provided
that:
(1) NMFS is notified that the activity described in the application
submitted under Sec. 217.147 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) NMFS receives the monitoring reports required under Sec.
217.146(f) and (g); and
(3) NMFS determines that the mitigation, monitoring and reporting
measures required under Sec. Sec. 217.144 and 217.146 and the Letter of
Authorization issued under Sec. Sec. 216.106 and 217.148 of this
chapter were undertaken and will be undertaken during the upcoming
period of validity of a renewed Letter of Authorization.
(b) If either a request for a renewal of a Letter of Authorization
issued under Sec. Sec. 216.106 and 217.149 of this chapter or a
determination by NMFS and the applicant that modifications are
appropriate pursuant to the adaptive management component of these
regulations indicates that a substantial modification, as determined by
NMFS, to the described work, mitigation or monitoring undertaken during
the upcoming season will occur, 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 substantive 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.
(d) Adaptive management--NMFS may modify or augment the existing
mitigation or monitoring measures (after consulting with BP regarding
the practicability of the modifications) if doing so creates a
reasonable likelihood of more effectively accomplishing the goals of
mitigation and monitoring set forth in the preamble of these
regulations. Below are some of the possible sources of new data that
could contribute to the decision to modify the mitigation or monitoring
measures:
(1) Results from BP's monitoring from the previous year;
(2) Results from general marine mammal and sound research; or
(3) Any information which reveals that marine mammals may have been
taken in a manner, extent or number not authorized by these regulations
or subsequent LOAs.
Sec. 217.150 Modifications of 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 issued by NMFS, pursuant to Sec. Sec. 216.106
and 217.148 of this chapter 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. 217.149, 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. 217.142(c), a Letter of
Authorization issued pursuant to Sec. Sec. 216.106 and 217.148 of this
chapter 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 P_Taking Marine Mammals Incidental to Construction and Operation
of a Liquefied Natural Gas Deepwater Port in the Gulf of Mexico
Source: 78 FR 20816, Apr. 8, 2013, unless otherwise noted.
[[Page 128]]
Effective Date Note: At 78 FR 20816, Apr. 8, 2013, subpart P was
added, effective June 1, 2013, to May 31, 2018.
Sec. 217.151 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to Port Dolphin Energy
LLC (Port Dolphin) and those persons it authorizes to conduct activities
on its behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section and that occur incidental to
construction and operation of the Port Dolphin Deepwater Port (Port).
(b) The taking of marine mammals by Port Dolphin may be authorized
in a Letter of Authorization (LOA) only if it occurs in the vicinity of
the Port Dolphin Deepwater Port in the eastern Gulf of Mexico or along
the associated pipeline route.
Sec. 217.152 Effective dates.
Regulations in this subpart are effective from June 1, 2013, through
May 31, 2018.
Sec. 217.153 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 and 217.157 of
this chapter, the Holder of the LOA (hereinafter ``Port Dolphin'') may
incidentally, but not intentionally, take marine mammals within the area
described in Sec. 217.151(b) of this chapter, provided the activity is
in compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.151(a) of this chapter is limited to the
following species and is limited to Level B Harassment:
(1) Bottlenose dolphin (Tursiops truncatus)--3,388 (860 the first
year and an average of 632 annually thereafter)
(2) Atlantic spotted dolphin (Stenella frontalis)--1,274 (290 the
first year and an average of 246 annually thereafter)
Sec. 217.154 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.151 of this
chapter and authorized by a LOA issued under Sec. Sec. 216.106 and
217.157 of this chapter, no person in connection with the activities
described in Sec. 217.151 of this chapter may:
(a) Take any marine mammal not specified in Sec. 217.153(b) of this
chapter;
(b) Take any marine mammal specified in Sec. 217.153(b) of this
chapter other than by incidental, unintentional Level B Harassment;
(c) Take a marine mammal specified in Sec. 217.153(b) of this
chapter 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 this subpart or a LOA issued under Sec. Sec. 216.106
and 217.157 of this chapter.
Sec. 217.155 Mitigation.
(a) When conducting the activities identified in Sec. 217.151(a) of
this chapter, the mitigation measures contained in any LOA issued under
Sec. Sec. 216.106 and 217.157 of this chapter must be implemented.
These mitigation measures include but are not limited to:
(1) General Conditions:
(i) Briefings shall be conducted between the Port Dolphin project
construction supervisors and the crew, protected species observer(s)
(PSO), and acoustic monitoring team prior to the start of all
construction activity, and when new personnel join the work, to explain
responsibilities, communication procedures, protected species monitoring
protocol, and operational procedures.
(ii) Port Dolphin shall comply with all applicable equipment sound
standards and ensure that all construction equipment has sound control
devices no less effective than those provided on the original equipment.
Vessel crew and contractors shall minimize the production of underwater
sound to the extent possible. Equipment and/or procedures used may
include the use of enclosures and mufflers on equipment, minimizing the
use of thrusters, and turning off engines and equipment when not in use.
(iii) All vessels associated with Port Dolphin construction and
operations shall comply with NMFS Vessel Strike Avoidance Measures and
Reporting for Mariners and applicable regulations.
[[Page 129]]
All vessels associated with Port Dolphin construction and operations
shall remain 500 yd (457 m) away from North Atlantic right whales
(Eubalaena glacialis) and 100 yd (91 m) away from all other marine
mammals, except in cases where small marine mammals (i.e., delphinids)
voluntarily approach within 100 yd or unless constrained by human safety
concerns or navigational constraints.
(2) Shutdown and Monitoring:
(i) Shutdown zone: For all stationary activities, shutdown zones
shall be established. These zones shall include all areas where
underwater sound pressure levels (SPLs) are anticipated to equal or
exceed 180 dB re: 1 Pa rms, as determined by modeled scenarios
approved by NMFS for each specific activity. The actual size of these
zones shall be empirically determined and reported by Port Dolphin. For
all non-stationary activities (e.g., pipeline burial, shuttle
regasification vessel (SRV) maneuvering), Port Dolphin shall adhere to
Vessel Strike Avoidance Measures described in Sec. 217.155(a)(1)(iii)
of this chapter, but shall not otherwise be required to establish
shutdown zones.
(ii) Disturbance zone: For all construction activities, disturbance
zones shall be established. For impact pile driving, these zones shall
include all areas where underwater SPLs are anticipated to equal or
exceed 160 dB re: 1 Pa rms. For all other activities these
zones shall include all areas where underwater SPLs are anticipated to
equal or exceed 120 dB re: 1 Pa rms. These zones shall be
established on the basis of modeled scenarios approved by NMFS for each
specific activity. The actual size of disturbance zones shall be
empirically determined and reported by Port Dolphin, and on-site PSOs
shall be aware of the size of these zones. However, because of the large
size of these zones, monitoring of the zone is required only to maximum
line-of-sight distance from established monitoring locations.
(iii) Visual monitoring shall occur for all construction activities.
The following measures shall apply:
(A) Zones shall be monitored from the appropriate vessel or work
platform, or other suitable vantage point. Port Dolphin shall at all
times employ, at minimum, two PSOs in association with each concurrent
specified construction activity.
(B) Shutdown zones shall be monitored for the presence of marine
mammals before, during, and after construction activity. For all
activities, the shutdown zone shall be monitored for 30 minutes prior to
initiating the start of activity and for 30 minutes following the
completion of activity. If marine mammals are present within the
shutdown zone prior to initiating activity, the start shall be delayed
until the animals leave the shutdown zone of their own volition or until
15 minutes has elapsed without observing the animal. If a marine mammal
is observed within or approaching the shutdown zone, activity shall be
halted as soon as it is safe to do so, until the animal is observed
exiting the shutdown zone or 15 minutes has elapsed. If a marine mammal
is observed within the disturbance zone, a take shall be recorded and
behaviors documented.
(C) PSOs shall be on watch at all times during daylight hours when
in-water operations are being conducted, unless conditions (e.g., fog,
rain, darkness) make observations impossible. The lead PSO on duty shall
make this determination. If conditions deteriorate during daylight hours
such that the sea surface observations are halted, visual observations
must resume as soon as conditions permit. While activities will be
permitted to continue during low-visibility conditions, they must have
been initiated following proper clearance of the shutdown zone under
acceptable observation conditions and must be restarted, if halted for
any reason, using the appropriate shutdown zone clearance procedures as
described in Sec. 217.155(a)(2)(iii)(B) of this chapter.
(3) Pile driving:
(i) A minimum shutdown zone of 250 m radius shall be established
around all impact pile driving activity.
(ii) Contractors shall reduce the power of impact hammers to minimum
energy levels required to drive a pile.
(iii) Port Dolphin shall use a sound attenuation measure for impact
driving of pilings. Prior to beginning construction, Port Dolphin must
provide information to NMFS about the device
[[Page 130]]
to be used, including technical specifications. NMFS must approve use of
the device before construction may begin. If a bubble curtain or similar
measure is used, it shall distribute small air bubbles around 100
percent of the piling perimeter for the full depth of the water column.
Any other attenuation measure (e.g., temporary sound attenuation pile)
must provide 100 percent coverage in the water column for the full depth
of the pile. Prior to any impact pile driving, a performance test of the
sound attenuation device must be conducted in accordance with a NMFS-
approved acoustic monitoring plan. If a bubble curtain or similar
measure is utilized, the performance test shall confirm the calculated
pressures and flow rates at each manifold ring.
(iv) Ramp-up:
(A) A ramp-up technique shall be used at the beginning of each day's
in-water pile driving activities and if pile driving resumes after it
has ceased for more than 1 hour.
(B) If a vibratory driver is used, contractors shall be required to
initiate sound from vibratory hammers for 15 seconds at reduced energy
followed by a 1-minute waiting period. The procedure shall be repeated
two additional times before full energy may be achieved.
(C) If a non-diesel impact hammer is used, contractors shall be
required to provide an initial set of strikes from the impact hammer at
reduced energy, followed by a 1-minute waiting period, then two
subsequent sets.
(D) If a diesel impact hammer is used, contractors shall be required
to turn on the sound attenuation device for 15 seconds prior to
initiating pile driving.
(v) No impact pile driving shall occur when visibility in the
shutdown zone is significantly limited, such as during heavy rain or
fog.
(4) Additional mitigation measures:
(i) Use of lights during construction activities shall be limited to
areas where work is actually occurring, and all other lights must be
extinguished. Lights must be shielded such that they illuminate the deck
and do not intentionally illuminate surrounding waters, to the extent
possible.
(ii) Additional mitigation measures as contained in a LOA issued
under Sec. Sec. 216.106 and 217.157 of this chapter.
(b) [Reserved]
Sec. 217.156 Requirements for monitoring and reporting.
(a) Visual monitoring program:
(1) Port Dolphin shall employ, at minimum, two qualified PSOs during
specified construction-related activities at each site where such
activities are occurring. All PSOs must be selected in conformance with
NMFS' minimum qualifications, as described in the preamble to this rule,
and must receive training sponsored by Port Dolphin, with topics to
include, at minimum, implementation of the monitoring protocol,
identification of marine mammals, and reporting requirements. The PSOs
shall be responsible for visually locating marine mammals in the
shutdown and disturbance zones and, to the extent possible, identifying
the species. PSOs shall record, at minimum, the following information:
(i) A count of all marine mammals observed by species, sex, and age
class, when possible.
(ii) Their location within the shutdown or disturbance zone, and
their reaction (if any) to construction activities, including direction
of movement.
(iii) Activity that is occurring at the time of observation,
including time that activity begins and ends, any acoustic or visual
disturbance, and time of the observation.
(iv) Environmental conditions, including wind speed, wind direction,
visibility, and temperature.
(2) Port Dolphin shall sponsor a training course to designated crew
members assigned to vessels associated with construction activities or
support of operations who will have responsibilities for watching for
marine mammals. This course shall cover topics including, but not
limited to, descriptions of the marine mammals found in the area,
mitigation and monitoring requirements contained in a LOA, sighting log
requirements, provisions of NMFS Vessel Strike Avoidance Measures and
Reporting for Mariners, and procedures for reporting injured or dead
marine mammals.
[[Page 131]]
(3) Monitoring shall be conducted using appropriate binoculars, such
as 8x50 marine binoculars. When possible, digital video or still cameras
shall also be used to document the behavior and response of marine
mammals to construction activities or other disturbances.
(4) Each PSO shall have two-way communication capability for contact
with other PSOs or work crews. PSOs shall implement shut-down or delay
procedures when applicable by calling for the shut-down to the
equipment/vessel operator.
(5) A GPS unit and/or appropriate range finding device shall be used
for determining the observation location and distance to marine mammals,
vessels, and construction equipment.
(b) Acoustic monitoring program:
(1) Acoustic monitoring must be conducted in accordance with the
NMFS-approved acoustic monitoring plan.
(2) Port Dolphin shall provide NMFS with empirically measured source
level data for designated sources of sound associated with Port
construction and operation activities and shall verify distances to
relevant sound thresholds. Measurements shall be carefully coordinated
with sound-producing activities.
(3) [Reserved]
(c) Reporting--Port Dolphin must implement the following reporting
requirements:
(1) A report of data collected during monitoring shall be submitted
to NMFS following conclusion of construction activities. Subsequent
reports concerning Port operations shall be submitted annually. The
reports shall include:
(i) All data required to be collected during monitoring, as
described under Sec. 217.156(a) of this chapter, including observation
dates, times, and conditions;
(ii) Correlations of observed behavior with activity type and
received levels of sound, to the extent possible; and
(iii) Estimations of total incidental take of marine mammals,
extrapolated from observed incidental take.
(2) Port Dolphin shall also submit a report(s) concerning the
results of all acoustic monitoring. Acoustic monitoring reports shall
include information as described in a NMFS-approved acoustic monitoring
plan.
(3) Reporting injured or dead marine mammals:
(i) In the unanticipated event that the specified activity clearly
causes the take of a marine mammal in a manner prohibited by a LOA (if
issued), such as an injury (Level A harassment), serious injury, or
mortality, Port Dolphin shall immediately cease the specified activities
and report the incident to the Chief of the Permits and Conservation
Division, Office of Protected Resources, NMFS, and the Southeast
Regional Stranding Coordinator, NMFS. The report must include the
following information:
(A) Time and date of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(D) Description of all marine mammal observations in the 24 hours
preceding the incident;
(E) Species identification or description of the animal(s) involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s).
Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with Port Dolphin
to determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. Port Dolphin may not
resume their activities until notified by NMFS.
(ii) In the event that Port Dolphin discovers an injured or dead
marine mammal, and the lead PSO determines that the cause of the injury
or death is unknown and the death is relatively recent (e.g., in less
than a moderate state of decomposition), Port Dolphin shall immediately
report the incident to the Chief of the Permits and Conservation
Division, Office of Protected Resources, NMFS, and the Southeast
Regional Stranding Coordinator, NMFS. The report must include the same
information identified in Sec. 217.156(b)(3)(i) of this chapter.
Activities may continue while NMFS reviews the circumstances of the
incident. NMFS will work with Port Dolphin to determine
[[Page 132]]
whether additional mitigation measures or modifications to the
activities are appropriate.
(iii) In the event that Port Dolphin discovers an injured or dead
marine mammal, and the lead PSO determines that the injury or death is
not associated with or related to the activities authorized in the LOA
(e.g., previously wounded animal, carcass with moderate to advanced
decomposition, or scavenger damage), Port Dolphin shall report the
incident to the Chief of the Permits and Conservation Division, Office
of Protected Resources, NMFS, and the Southeast Regional Stranding
Coordinator, NMFS, within 24 hours of the discovery. Port Dolphin shall
provide photographs or video footage or other documentation of the
stranded animal sighting to NMFS.
(4) Annual reports. (i) A report summarizing all marine mammal
monitoring and construction activities shall be submitted to NMFS,
Office of Protected Resources, and NMFS, Southeast Regional Office
(specific contact information to be provided in LOA) following the
conclusion of construction activities. Thereafter, Port Dolphin shall
submit annual reports summarizing operations activities.
(ii) The annual reports shall include data collected for each marine
mammal species observed in the project area. Description of marine
mammal behavior, overall numbers of individuals observed, frequency of
observation, and any behavioral changes and the context of the changes
relative to activities shall also be included in the reports. Additional
information that shall be recorded during activities and contained in
the reports include: date and time of marine mammal detections, weather
conditions, species identification, approximate distance from the
source, and activity at the construction site when a marine mammal is
sighted. Port Dolphin shall extrapolate observed incidences of take to
provide an estimate of actual incidences of take.
(5) Five-year comprehensive report. (i) Port Dolphin shall submit a
draft comprehensive final report to NMFS, Office of Protected Resources,
and NMFS, Southeast Regional Office (specific contact information to be
provided in LOA) 180 days prior to the expiration of the regulations.
This comprehensive technical report shall provide full documentation of
methods, results, and interpretation of all monitoring during the first
4.5 years of the activities conducted under the regulations in this
subpart.
(ii) Port Dolphin shall submit a revised final comprehensive
technical report, including all monitoring results during the entire
period of the LOAs, 90 days after the end of the period of effectiveness
of the regulations to NMFS, Office of Protected Resources, and NMFS,
Southeast Regional Office (specific contact information to be provided
in LOA).
Sec. 217.157 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, Port Dolphin must apply for and obtain a LOA.
(b) A LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, Port Dolphin must apply for and obtain a renewal of the
LOA.
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, Port Dolphin must
apply for and obtain a modification of the LOA as described in Sec.
217.158 of this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of a LOA shall be published in the
Federal Register within 30 days of a determination.
[[Page 133]]
Sec. 217.158 Renewals and modifications of Letters of Authorization.
(a) A LOA issued under Sec. Sec. 216.106 and 217.157 of this
chapter for the activity identified in Sec. 217.151(a) of this chapter
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec.
217.158(c)(1) of this chapter).
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in Sec. 217.158(c)(1) of this chapter) that do not change the
findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed LOA in the
Federal Register, including the associated analysis of the change, and
solicit public comment before issuing the LOA.
(c) A LOA issued under Sec. Sec. 216.106 and 217.157 of this
chapter for the activity identified in Sec. 217.151(a) of this chapter
may be modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
with Port Dolphin regarding the practicability of the modifications) if
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from Port Dolphin's monitoring from the previous
year(s).
(B) Results from other marine mammal and/or sound research or
studies.
(C) Any information that reveals marine mammals may have been taken
in a manner, extent or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed LOA in the Federal Register and solicit
public comment.
(2) Emergencies--If NMFS 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. 217.153(b) of this chapter, an LOA may
be modified without prior notice or opportunity for public comment.
Notice would be published in the Federal Register within 30 days of the
action.
Subpart Q-T [Reserved]
Subpart U_Taking Of Marine Mammals Incidental To The Port of Anchorage
Marine Terminal Redevelopment Project
Sec. 217.200 Specified activities and specified geographical region.
(a) Regulations in this subpart apply only to the incidental taking
of those marine mammals specified in Sec. 217.202(b) by the Port of
Anchorage and the U.S. Department of Transportation Maritime
Administration (MARAD), and those persons it authorizes to engage in
construction activities associated with the Port of Anchorage Marine
Terminal Redevelopment Project, specifically in-water pile driving, at
the Port of Anchorage, Alaska.
(b) [Reserved]
Sec. 217.201 Effective dates.
Regulations in this subpart are effective from July 15, 2009,
through July 14, 2014.
Sec. 217.202 Permissible methods of taking.
(a) Under Letters of Authorization issued pursuant to Sec. 216.106
of this chapter and Sec. 217.207, the Port of Anchorage
[[Page 134]]
and MARAD, and persons under their authority, may incidentally, but not
intentionally, take marine mammals by harassment, within the area
described in Sec. 217.200, 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 incidental take, by Level B harassment only, of the
following species under the activities identified in Sec. 217.200(a):
Cook Inlet beluga whales (Delphinapterus leucas), harbor seals (Phoca
vitulina), harbor porpoises (Phocoena phocoena), and killer whales
(Orcinus orca).
(c) The taking by injury or death of the species listed in paragraph
(b) of this section or the taking by Level B harassment, injury or death
of any other marine mammal species is prohibited and may result in the
modification, suspension, or revocation of a Letter of Authorization.
Sec. 217.203 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.202(b) and
authorized by a Letter of Authorization issued under Sec. 216.106 of
this chapter and Sec. 217.207, no person in connection with the
activities described in Sec. 217.200 may:
(a) Take any marine mammal not specified in Sec. 217.202(b);
(b) Take any marine mammal specified in Sec. 217.202(b) other than
by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.202(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 this subpart or a Letter of Authorization issued under
Sec. 216.106 of this chapter and Sec. 217.207.
Sec. 217.204 Mitigation.
(a) When conducting operations identified in Sec. 217.200(a), the
mitigation measures contained in the Letter of Authorization, issued
under Sec. 216.106 of this chapter and Sec. 217.207, must be
implemented. These mitigation measures are:
(1) Through monitoring described under Sec. 217.205, the Holder of
a Letter of Authorization will ensure that no marine mammal is subjected
to a sound pressure levels of 190 or 180 dB re: 1 microPa or greater for
pinnipeds and cetaceans, respectively. If a marine mammal is detected
within or approaching a distance 200 m from in-water pile driving or in-
water chipping, operations shall be immediately delayed or suspended
until the marine mammal moves outside these designated zones or the
animal is not detected within 15 minutes of the last sighting.
(2) If a marine mammal is detected within or approaching the Level B
harassment zone designated for impact pile driving (350 m) prior to in-
water impact pile driving, operations shall not commence until the
animal moves outside this zone or it is not detected within 15 minutes
of the last sighting.
(3) If a marine mammal is detected within or approaching the Level B
harassment zone designated for vibratory pile driving (1,300 m) prior to
in-water vibratory pile driving, operations shall not commence until the
marine mammal moves outside this zone or it is not detected within 15
minutes of the last sighting.
(4) A start'' technique shall be used at the beginning of each day's
in-water pile driving activities or if pile driving has ceased for more
than one hour to allow any marine mammal that may be in the immediate
area to leave before piling driving reaches full energy. For vibratory
hammers, the soft start requires the holder of the Letter of
Authorization to initiate noise from the hammers for 15 seconds at
reduced energy followed by 1-minute waiting period and repeat the
procedure two additional times. If an impact hammer is used, the soft
start requires an initial set of three strikes from the impact hammer at
40 percent energy, followed by a one minute waiting period, then two
subsequent 3 strike sets.
(5) In-water pile driving or chipping shall not occur when
conditions restrict clear, visible detection of all waters within the
appropriate harassment zones or the 200 m safety zone. Such
[[Page 135]]
conditions that can impair sightibility include, but are not limited to,
fog and rough sea state.
(6) In-water piles will be driven with a vibratory hammer to the
maximum extent possible (i.e., until a desired depth is achieved or to
refusal) prior to using an impact hammer.
(7) In-water impact pile driving shall not occur during the period
from two hours before low tide until two hours after low tide.
(8) The following measures apply to all in-water pile driving,
except during the ``stabbing'' phase, and all in-water chipping
associated with demolition of the existing dock:
(i) No in-water pile driving (impact or vibratory) or chipping shall
occur if any marine mammal is located within 200m of the hammer in any
direction. If any marine mammal is sighted within or approaching this
200m safety zone, pile-driving or chipping must be suspended until the
animal has moved outside the 200m safety zone or the animal is not
resighted within 15 minutes.
(ii) If a group of more than 5 beluga whales is sighted within the
Level B harassment isopleths, in-water pile driving shall be suspended.
If the group is not re-sighted within 15 minutes, pile driving may
resume.
(iii) If a beluga whale calf or group with a calf is sighted within
or approaching a harassment zone, in-water pile driving shall cease and
shall not be resumed until the calf or group is confirmed to be outside
of the harassment zone and moving along a trajectory away from such
zone. If the calf or group with a calf is not re-sighted within 15
minutes, pile driving may resume.
(9) If maximum authorized take is reached or exceeded for a
particular species, any marine mammal of that species entering into the
harassment or safety isopleths will trigger mandatory in-water pile
driving shut down.
(10) For Port of Anchorage operated in-water heavy machinery work
other than pile driving or chipping (i.e., dredging, dump scowles, tug
boats used to move barges, barge mounted hydraulic excavators, or
clamshell equipment used to place or remove material), if a marine
mammal comes within 50 m, those operations will cease and vessels will
reduce to the slowest speed practicable while still maintaining control
of the vessel and safe working conditions.
(11) In the event the Port of Anchorage conducts out-of-water
blasting, detonation of charges will be delayed if a marine mammal is
detected anywhere within a visible distance from the detonation site.
(12) Additional mitigation measures as contained in a Letter of
Authorization.
(b) [Reserved]
Sec. 217.205 Requirements for monitoring and reporting.
(a) The Holder of a Letter of Authorization issued pursuant to Sec.
216.106 of this chapter and Sec. 217.207, for activities described in
Sec. 217.200(a) is required to cooperate with NMFS, and any other
Federal, state or local agency with authority to monitor 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, NMFS, by letter, e-mail, or telephone,
at least 2 weeks prior to commencement of seasonal activities and dock
demolition possibly involving the taking of marine mammals. If the
activity identified in Sec. 217.200(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. 217.202(b), the Holder of the Letter of
Authorization must notify the Director, Office of Protected Resources,
NMFS, or designee, by e-mail or telephone (301-713-2289), within 24
hours of the discovery of the injured or dead animal.
(b) The Holder of a Letters of Authorization must designate
qualified, on-site marine mammal observers (MMOs), approved in advance
by NMFS, as specified in the Letter of Authorization, to:
(1) Conduct visual marine mammal monitoring at the Port of Anchorage
beginning 30 minutes prior to and during all in-water pile driving or
chipping and out-of-water blasting.
(2) Record the following information on NMFS-approved marine mammal
sighting sheets whenever a marine mammal is detected:
[[Page 136]]
(i) Date and time of initial sighting to end of sighting, tidal
stage, and weather conditions (including Beaufort Sea State);
(ii) Species, number, group composition, initial and closest
distance to pile driving hammer, and behavior (e.g., activity, group
cohesiveness, direction and speed of travel, etc.) of animals throughout
duration of sighting;
(iii) Any discrete behavioral reactions to in-water work;
(iv) The number (by species) of marine mammals that have been taken;
(v) Pile driving, chipping, or out of water blasting activities
occurring at the time of sighting and if and why shut down was or was
not implemented.
(3) Employ a scientific marine mammal monitoring team separate from
the on-site MMOs to characterize beluga whale abundance, movements,
behavior, and habitat use around the Port of Anchorage and observe,
analyze, and document potential changes in behavior in response to in-
water construction work. This monitoring team is not required to be
present during all in-water pile driving operations but will continue
monitoring one-year post in-water construction. The on-site MMOs and
this marine mammal monitoring team shall remain in contact to alert each
other to marine mammal presence when both teams are working.
(c) The Holder of a Letter of Authorization must conduct additional
monitoring as required under an annual Letter of Authorization.
(d) The Holder of a Letter of Authorization shall submit a monthly
report to NMFS' Headquarters Permits, Education and Conservation
Division and the Alaska Region, Anchorage for all months in-water pile
driving or chipping takes place. This report must contain the
information listed in paragraph (b)(2) of this section.
(e) An annual report must be submitted at the time of application
for renewal of a Letter of Authorization. This report will summarize all
in-water construction activities and marine mammal monitoring from
January 1- December 31, annually, and any discernable short or long term
impacts from the Marine Terminal Expansion Project.
(f) A final report must be submitted to NMFS upon application for a
subsequent incidental take authorization or, if no future authorization
is requested, no later than 90 days post expiration of these
regulations. This report will:
(1) Summarize the activities undertaken and the results reported in
all previous reports;
(2) Assess the impacts to marine mammals from the port expansion
project; and
(3) Assess the cumulative impacts on marine mammals.
Sec. 217.206 Applications for Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the U.S. citizen (as defined by Sec. 216.103 of this
chapter) conducting the activity identified in Sec. 217.200(a) (the
Port of Anchorage and MARAD) must apply for and obtain either an initial
Letter of Authorization in accordance with Sec. 217.207 or a renewal
under Sec. 217.208.
(b) The application must be submitted to NMFS at least 60 days
before the expiration of the initial or current Letter of Authorization.
(c) Applications for a Letter of Authorization and for renewals of
Letters of Authorization must include the following:
(1) Name of the U.S. citizen requesting the authorization,
(2) The date(s), duration, and the specified geographic region where
the activities specified in Sec. 217.200 will occur; and
(3) The most current population estimate of Cook Inlet beluga whales
and the estimated percentage of marine mammal populations potentially
affected for the 12-month period of effectiveness of the Letter of
Authorization;
(4) A summary of take levels, monitoring efforts and findings at the
Port of Anchorage to date.
(d) The National Marine Fisheries Service will review an application
for a Letter of Authorization in accordance with this section and, if
adequate and complete, issue a Letter of Authorization.
[[Page 137]]
Sec. 217.207 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. 217.208.
(b) Each Letter of Authorization will set forth:
(1) Permissible methods of incidental taking; and
(2) Requirements for mitigation, monitoring and reporting,
including, but not limited to, means of effecting the least practicable
adverse impact on the species, its habitat, and on the availability of
the species for subsistence uses.
(c) Issuance of a Letter of Authorization will be based on the
determination that the number of marine mammals taken during the period
the Letter of Authorization is valid will be small, that the total
taking of marine mammals by the activities specified in Sec. 217.200(a)
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 subsistence uses.
(d) Notice of issuance or denial of an application for a Letter of
Authorization will be published in the Federal Register within 30 days
of a determination.
Sec. 217.208 Renewal of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 217.207 for the activity identified in Sec.
217.200(a) will be renewed annually upon:
(1) Notification to NMFS that the activity described in the
application submitted under Sec. 217.206 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.
217.205(d) and (e), and the Letter of Authorization issued under Sec.
217.207, which has been reviewed and accepted by NMFS; and
(3) A determination by NMFS that the mitigation, monitoring and
reporting measures required under Sec. Sec. 217.204 and 217.205 and the
Letter of Authorization issued under Sec. 216.106 of this chapter and
Sec. 217.207, were undertaken and will be undertaken during the
upcoming annual period of validity of a renewed Letter of Authorization;
and
(4) A determination by NMFS that the number of marine mammals taken
during the period of the Letter of Authorization will be small, that the
total taking of marine mammals by the activities specified in Sec.
217.200(a) 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 subsistence uses.
(b) If a request for a renewal of a Letter of Authorization issued
under Sec. 216.106 of this chapter and this section indicates that a
substantial modification to the described work, mitigation or monitoring
undertaken during the upcoming season will occur, NMFS will provide the
public a period of 30 days for review and comment on the request.
(c) 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. 217.209 Modifications of 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. 216.106 of
this chapter and Sec. 217.207 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. 217.208, 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. 217.202(b), a
[[Page 138]]
Letter of Authorization issued pursuant to Sec. 216.106 of this chapter
and Sec. 217.207 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 W_Taking of Marine Mammals Incidental to the Elliott Bay Seawall
Project
Source: 78 FR 63402, Oct. 24, 2013, unless otherwise noted.
Effective Date Note: At 78 FR 63402, Oct. 24, 2013, subpart W was
added, effective Oct. 21, 2013, through Oct. 21, 2018.
Sec. 217.220 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the Elliott Bay
Seawall project and those persons it authorizes to conduct activities on
its behalf for the taking of marine mammals that occurs in the area
outlined in paragraph (b) of this section incidental to seawall
construction associated with the Elliott Bay Seawall project.
(b) The taking of marine mammals by the City of Seattle's Department
of Transportation (SDOT) may be authorized in a Letter of Authorization
(LOA) only if it occurs in Elliott Bay, Washington.
Sec. 217.221 Effective dates.
This subpart is effective October 21, 2013, through October 21,
2018.
Sec. 217.222 Permissible methods of taking.
(a) Under LOAs issued pursuant to Sec. Sec. 216.106 and 217.226 of
this chapter, the Holder of the LOA (hereinafter ``SDOT'' and ``City'')
may incidentally, but not intentionally, take marine mammals within the
area described in Sec. 217.220(b), provided the activity is in
compliance with all terms, conditions, and requirements of the
regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities
identified in Sec. 217.220(a) is limited to the indicated number of
Level B harassment takes of the following species/stocks:
(1) Harbor seal (Phoca vitulina)--3,500 (an average of 700 animals
per year)
(2) California sea lion (Zalophus californianus)--875 (an average of
175 animals per year)
(3) Steller sea lion (Eumetopias jubatus)--875 (an average of 175
animals per year)
(4) Harbor porpoise (Phocoena phocoena)--1,575 (an average of 315
animals per year)
(5) Dall's porpoise (Phocoenoides dalli)--350 (an average of 70
animals per year)
(6) Killer whale (Orcinus orca), Eastern North Pacific Southern
resident--80 (a maximum of 16 animals per year)
(7) Killer whale (Orcinus orca), Eastern North Pacific transient--
120 (an average of 24 animals per year)
(8) Gray whale (Eschrichtius robustus)--40 (an average of 8 animals
per year)
(9) Humpback whale (Megaptera novaeangliae)--20 (an average of 4
animals per year)
Sec. 217.223 Prohibitions.
Notwithstanding takings contemplated in Sec. 217.222(b) and
authorized by an LOA issued under Sec. 216.106 and Sec. 217.226 of
this chapter, no person in connection with the activities described in
Sec. 217.220 may:
(a) Take any marine mammal not specified in Sec. 217.222(b);
(b) Take any marine mammal specified in Sec. 217.222(b) other than
by incidental, unintentional Level B harassment;
(c) Take a marine mammal specified in Sec. 217.222(b) if NMFS
determines such taking results in more than a negligible impact on the
species or stock of such marine mammal; or
(d) Violate, or fail to comply with, the terms, conditions, and
requirements of this subpart or an LOA issued under Sec. Sec. 216.106
and 217.226 of this chapter.
Sec. 217.224 Mitigation.
(a) When conducting the activities identified in Sec. 217.220(a),
the mitigation measures contained in the LOA issued under Sec. Sec.
216.106 and 217.226 of this chapter must be implemented. These
mitigation measures include:
[[Page 139]]
(1) Limited Impact Pile Driving. (i) All sheet piles shall be
installed using a vibratory driver, unless impact driving is required to
install piles that encounter consolidated sediments or for proofing load
bearing sections.
(ii) Any impact driver used in conjunction with vibratory pile
driving shall employ sound attenuation devices, where applicable.
(iii) Any attenuation devices that become available for vibratory
pile driving shall be considered for additional mitigation.
(2) Containment of Impact Pile Driving. The majority of permanent
concrete piles shall be driven behind the temporary containment wall.
(3) Additional Attenuation Measures. In the event that underwater
sound monitoring shows that noise generation from pile installation
exceeds the levels originally expected, SDOT shall immediately notify
NMFS so it can evaluate the need for implementation of additional
attenuation devices or other mitigation measures.
(4) Ramp-up. (i) Ramp-up shall be used at the beginning of each
day's in-water pile-related activities or if pile driving has ceased for
more than 1 hour.
(ii) If a vibratory hammer is used, contractors shall initiate sound
from vibratory hammers for 15 seconds at reduced energy followed by a 1-
minute waiting period. This procedure shall be repeated two additional
times before full energy may be achieved.
(iii) If a non-diesel impact hammer is used, contractors shall
provide an initial set of strikes from the impact hammer at reduced
energy, followed by a 1-minute waiting period, then two subsequent sets.
(iv) Ramp-up shall be implemented if pile driving or removal is
delayed or shutdown for 15 minutes due to the presence of a
delphinid or pinniped within or approaching the exclusion zone, or if
pile driving or removal is delayed or shutdown for 30 minutes
due to the presence of a large whale.
(5) Marine Mammal Exclusion Zones. (i) The following exclusion zones
shall be established to prevent the Level A harassment of all marine
mammals and to reduce the Level B harassment of large whales:
(A) An exclusion zone for delphinids or pinnipeds shall be
established with a radius of 200 feet (61 meters) waterward of each
steel sheet pile during impact pile driving;
(B) An exclusion zone for delphinids and pinnipeds shall be
established with a radius of 50 feet (15 meters) waterward of each
concrete pile during impact pile driving;
(C) An exclusion zone for large whales shall be established with a
radius of 3,280 feet (1,000 meters) waterward of each steel sheet or
concrete pile during impact pile driving;
(D) An exclusion zone for large whales shall be established with a
radius of 2.5 miles (3,981 meters) waterward of each steel sheet pile
during vibratory pile driving.
(ii) Temporary buoys shall be used, as feasible, to mark the
distance to each exclusion zone during in-water pile-related activities.
(iii) The exclusion zones shall be used to provide a physical
threshold for the shutdown of in-water pile-related activities.
(iv) At the start of in-water pile related activities each day, a
minimum of one qualified protected species observer shall be staged on
land (or an adjacent pier) near the location of in-water pile-related
activities to document and report any marine mammal that approaches or
enters a relevant exclusion zone throughout the day.
(v) Additional land-based observers shall be deployed if needed to
ensure the construction area is adequately monitored.
(vi) Observers shall monitor for the presence of marine mammals 30
minutes before, during, and for 30 minutes after any in-water pile-
related activities.
(vii) In-water pile-related activities shall not occur if any part
of the exclusion zones are obscured by fog or poor lighting conditions.
(6) Shutdown and Delay Procedures. (i) If a marine mammal is seen
approaching or entering a relevant exclusion zone (as specified in Sec.
217.224(5)(i)), observers will immediately notify the construction
personnel operating the pile-related equipment to shut down pile-related
activities.
[[Page 140]]
(ii) If a marine mammal(s) is present within the applicable
exclusion zone prior to in-water pile-related activities, pile driving/
removal shall be delayed until the animal(s) has left the exclusion zone
or until 15 minutes (pinniped or small cetacean) or 30 minutes (large
cetacean) have elapsed without observing the animal.
(7) Additional mitigation measures as contained in an LOA issued
under Sec. Sec. 216.106 and 217.226 of this chapter.
Sec. 217.225 Requirements for monitoring and reporting.
(a) When conducting the activities identified in Sec. 217.220(a),
the monitoring and reporting measures contained in the LOA issued under
Sec. Sec. 216.106 and 217.226 of this chapter must be implemented.
These measures include:
(1) Visual Monitoring. (i) In addition to the mitigation monitoring
described in Sec. 217.224 of this chapter, at least two protected
species observers shall be positioned on land near the 2.5 mile
exclusion zone to monitor for marine mammals during vibratory pile-
related activities or any other construction activities that may pose a
threat to marine mammals.
(A) Observers shall use the naked eye, wide-angle binoculars with
reticles, and any other necessary equipment to scan the Level B
harassment isopleth.
(B) Observers shall work, on average, eight hours per day and shall
be relieved by a fresh observer if pile driving lasts longer than usual
(i.e., 12-16 hours).
(C) The number of observers shall be increased and/or positions
changed to ensure full visibility of the Level B harassment isopleth.
(D) Land-based visual monitoring shall be conducted during all days
of vibratory pile driving.
(E) All land-based monitoring shall begin at least 30 minutes prior
to the start of in-water pile-related activities, and continue during
active construction and for 30 minutes following the end of in-water
pile-related activities.
(ii) At a minimum, observers shall record the following information:
(A) Date of observation period, monitoring type (land-based/boat-
based), observer name and location, climate and weather conditions, and
tidal conditions;
(B) Environmental conditions that could confound marine mammal
detections and when/where they occurred;
(C) For each marine mammal sighting, the time of initial sighting
and duration to the end of the sighting period;
(D) Observed species, number, group composition, distance to pile-
related activities, and behavior of animals throughout the sighting;
(E) Discrete behavioral reactions, if apparent;
(F) Initial and final sighting locations marked on a grid map; and
(G) Pile-related activities taking place during each sighting and
if/why a shutdown was or was not triggered.
(2) Acoustic Monitoring. (i) Acoustic monitoring shall be conducted
during in-water pile-related activities to identify or confirm noise
levels for pile-related activities during in-water construction.
(A) Acoustic data shall be collected using hydrophones connected to
a drifting boat to reduce the effect of flow noise and an airborne
microphone. There shall be a direct line of acoustic transmission
through the water column between the pile and the hydrophones in all
cases, without any interposing structures, including other piles.
(B) A stationary two-channel hydrophone recording system shall be
deployed to record a representative sample (subset of piles) during the
monitoring period. Acoustic data shall be collected 1 m below the water
surface and 1 m above the sea floor.
(ii) Background noise recordings (in the absence of pile driving)
shall be collected to provide a baseline background noise profile. The
results and conclusions of the study shall be summarized and presented
to NMFS with recommendations for any modifications to the monitoring
plan or exclusion zones.
(iii) All sensors, signal conditioning equipment, and sampling
equipment shall be calibrated at the start of the monitoring period and
rechecked at the start of each day.
(iv) Prior to monitoring, water depth measurements shall be taken to
ensure
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that hydrophones do not drag on the bottom during tidal changes.
(v) Underwater and airborne acoustic monitoring shall occur for the
first five steel sheet pile and the first five concrete piles during the
duration of pile driving. If a representative sample has not been
achieved after the five piles have been monitored (e.g., if there is
high variability of sound levels between pilings), acoustic monitoring
shall continue until a representative acoustic sample has been
collected.
(vi) Acoustic data shall be downloaded periodically (i.e., daily or
on another appropriate schedule) and analyzed following the first year
of construction. Post-analysis of underwater sound level signals shall
include the following:
(A) RMS values (average, standard deviation/error, minimum, and
maximum) for each recorded pile. The 10-second RMS averaged values will
be used for determining the source value and extent of the 120 dB
underwater isopleth;
(B) Frequency spectra for each functional hearing group; and
(C) Standardized underwater source levels to a reference distance of
10 m (33 ft).
(vii) Post-analysis of airborne noise would be presented in an
unweighted format and include:
(A) The unweighted RMS values (average, minimum, and maximum) for
each recorded pile. The average values would be used for determining the
extent of the airborne isopleths relative to species-specific criteria;
(B) Frequency spectra from 10 Hz to 20 kHz for representative pile-
related activity; and
(C) Standardized airborne source levels to a reference distance of
approximately 15 m (50 ft).
(viii) In the event noise levels surpass estimated levels for
extended periods of time, construction shall be stopped and NMFS shall
be contacted to discuss the cause and potential solutions.
(3) General Reporting. (i) All marine mammal sightings shall be
documented by observers on a NMFS-approved sighting form.
(ii) Marine mammal reporting shall include all data described
previously under Proposed Monitoring, including observation dates,
times, and conditions, and any correlations of observed marine mammal
behavior with activity type and received levels of sound, to the extent
possible.
(iii) A report with the results of all acoustic monitoring shall
include the following:
(A) Size and type of piles;
(B) A detailed description of any sound attenuation device used,
including design specifications;
(C) The impact hammer energy rating used to drive the piles, make
and model of the hammer(s), and description of the vibratory hammer;
(D) A description of the sound monitoring equipment;
(E) The distance between hydrophones and depth of water and the
hydrophone locations;
(F) The depth of the hydrophones;
(G) The distance from the pile to the water's edge;
(H) The depth of water in which the pile was driven;
(I) The depth into the substrate that the pile was driven;
(J) The physical characteristics of the bottom substrate into which
the pile were driven;
(K) The total number of strikes to drive each pile;
(L) The results of the hydroacoustic monitoring, including the
frequency spectrum, ranges and means for the peak and RMS sound pressure
levels, and an estimation of the distance at which RMS values reach the
relevant marine mammal thresholds and background sound levels.
(M) Vibratory driving results would include the maximum and overall
average RMS calculated from 30-s RMS values during the drive of the
pile; and
(N) A description of any observable marine mammal behavior in the
immediate area and, if possible, correlation to underwater sound levels
occurring at that time.
(iv) An annual report on monitoring and mitigation shall be
submitted to NMFS, Office of Protected Resources, and NMFS, Northwest
Regional Office. The annual reports shall summarize include data
collected for each marine mammal species observed in the project area,
including descriptions of marine mammal behavior, overall
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numbers of individuals observed, frequency of observation, any
behavioral changes and the context of the changes relative to activities
would also be included in the annual reports, date and time of marine
mammal detections, weather conditions, species identification,
approximate distance from the source, and activity at the construction
site when a marine mammal is sighted.
(v) A draft comprehensive report on monitoring and mitigation shall
be submitted to NMFS, Office of Protected Resources, and NMFS, Northwest
Regional Office, 180 days prior to the expiration of the regulations.
The comprehensive technical report shall provide full documentation of
methods, results, and interpretation of all monitoring during the first
4.5 years of the regulations. A revised final comprehensive technical
report, including all monitoring results during the entire period of the
regulations, shall be due 90 days after the end of the period of
effectiveness of the regulations.
(4) Reporting Injured or Dead Marine Mammals. (i) In the
unanticipated event that the specified activity clearly causes the take
of a marine mammal in a manner prohibited by an LOA (if issued), such as
an injury (Level A harassment), serious injury, or mortality, the Holder
shall immediately cease the specified activities and report the incident
to the Chief of the Permits and Conservation Division, Office of
Protected Resources, NMFS, and the Northwest Regional Stranding
Coordinator. The report must include the following information:
(A) Time and date of the incident;
(B) Description of the incident;
(C) Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, and visibility);
(D) Description of all marine mammal observations in the 24 hours
preceding the incident;
(E) Species identification or description of the animal(s) involved;
(F) Fate of the animal(s); and
(G) Photographs or video footage of the animal(s).
(ii) Activities shall not resume until NMFS is able to review the
circumstances of the prohibited take. NMFS will work with the Holder to
determine what measures are necessary to minimize the likelihood of
further prohibited take and ensure MMPA compliance. The Holder may not
resume their activities until notified by NMFS.
(iii) In the event that the Holder discovers an injured or dead
marine mammal, and the lead protected species observer determines that
the cause of the injury or death is unknown and the death is relatively
recent (e.g., in less than a moderate state of decomposition), the
Holder shall immediately report the incident to the Chief of the Permits
and Conservation Division, Office of Protected Resources, NMFS, and the
Northwest Regional Stranding Coordinator. The report must include the
same information identified in Sec. 217.225(a)(3) of this chapter.
Activities may continue while NMFS reviews the circumstances of the
incident. NMFS will work with the Holder to determine whether additional
mitigation measures or modifications to the activities are appropriate.
(iv) In the event that the Holder discovers an injured or dead
marine mammals, and the lead protected species observer determines that
the injury or death is not associated with or related to the activities
authorized in the LOA (e.g., previously wounded animal, carcass with
moderate to advanced decomposition, or scavenger damage), the Holder
shall report the incident to the Chief of the Permits and Conservation
Division, Office of Protected Resources, NMFS, and the Northwest
Regional Stranding Coordinator, within 24 hours of the discovery. The
Holder shall provide photographs or video footage or other documentation
of the stranding animal sighting to NMFS.
Sec. 217.226 Letters of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the applicant must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a
period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these
regulations, the Holder must apply for and obtain a renewal of the LOA.
[[Page 143]]
(d) In the event of projected changes to the activity or to
mitigation and monitoring measures required by an LOA, the Holder must
apply for and obtain a modification of the LOA as described in Sec.
217.227.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species and its habitat; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the
level of taking will be consistent with the findings made for the total
taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
Federal Register within 30 days of a determination.
Sec. 217.227 Renewals and Modifications of Letters of Authorization.
(a) An LOA issued under Sec. Sec. 216.106 and 217.226 of this
chapter for the activity identified in Sec. 217.220(a) of this chapter
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec.
217.227(c)(1)), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous LOA under these regulations were
implemented.
(b) For LOA modification or renewal requests by the applicant that
include changes to the activity or the mitigation, monitoring, or
reporting (excluding changes made pursuant to the adaptive management
provision in Sec. 217.227(c)(1)) that do not change the findings made
for the regulations or that result in no more than a minor change in the
total estimated number of takes (or distribution by species or years),
NMFS may publish a notice of proposed LOA in the Federal Register,
including the associated analysis illustrating the change, and solicit
public comments before issuing the LOA.
(c) An LOA issued under Sec. Sec. 216.106 and 217.226 of this
chapter for the activity identified in Sec. 217.220(a) may be modified
by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
with the Holder regarding the practicability of the modifications) if
doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in an LOA
include the following:
(A) Results from the Holder's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or
studies;
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by these regulations or
subsequent LOAs.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS will
publish a notice of proposed LOA in the Federal Register and solicit
public comments.
(2) Emergencies--If NMFS 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. 217.222(b), an LOA may be modified
without prior notice or opportunity for public comment. Notice of such
action will be published in the Federal Register within 30 days of the
action.
[74 FR 35143, July 20, 2009, as amended at 76 FR 16318, Mar. 23, 2011;
76 FR 34172, June 13, 2011; 77 FR 31544, May 29, 2012; 78 FR 20816, Apr.
8, 2013; 78 FR 63402, Oct. 24, 2013; 78 FR 75507, Dec. 12, 2013; 79 FR
10026, Feb. 24, 2014; 79 FR 32684, June 6, 2014]
[[Page 144]]
PART 218_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS--Table of Contents
Subpart A [Reserved]
Subpart B_Takes of Marine Mammals Incidental to Specified Activities;
U.S. Navy Joint Logistics Over-the-Shore (JLOTS) Training Activities in
Virginia and North Carolina
218.10 Specified activity and region.
218.11 Effective dates.
218.12 Permissible methods of taking.
218.13 Prohibitions.
218.14 Mitigation.
218.15 Requirements for monitoring and reporting.
218.16 Applications for Letters of Authorization.
218.17 Letters of Authorization.
218.18 Modifications to Letters of Authorization.
Subparts C-D [Reserved]
Subpart E_Taking Marine Mammals Incidental to U.S. Marine Corps Training
Exercises at Brant Island Bombing Target and Piney Island Bombing Range,
Pamlico Sound, North Carolina
218.40 Specified activity and location of specified activities.
218.41 Effective dates.
218.42 Permissible methods of taking.
218.43 Prohibitions.
218.44 Mitigation.
218.45 Requirements for monitoring and reporting.
218.46 Applications for Letters of Authorization.
218.47 Letter of Authorization.
218.48 Renewal and Modifications of Letters of Authorization.
Subparts F-G [Reserved]
Subpart H_Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)
218.70 Specified activity and specified geographical region.
218.71 Effective dates and definitions.
218.72 Permissible methods of taking.
218.73 Prohibitions.
218.74 Mitigation.
218.75 Requirements for monitoring and reporting.
218.76 Applications for Letters of Authorization.
218.77 Letters of Authorization.
218.78 Renewals and modifications of Letters of Authorization and
Adaptive Management.
Subpart I_Taking and Importing Marine Mammals; U.S. Navy's Atlantic
Fleet Training and Testing (AFTT)
Sec.
218.80 Specified activity and specified geographical region.
218.81 Effective dates and definitions.
218.82 Permissible methods of taking.
218.83 Prohibitions.
218.84 Mitigation.
218.85 Requirements for monitoring and reporting.
218.86 Applications for Letters of Authorization.
218.87 Letters of Authorization.
218.88 Renewals and Modifications of Letters of Authorization and
Adaptive Management.
Subpart J_Taking and Importing Marine Mammals; U.S. Navy's Mariana
Islands Training and Testing (MITT)
218.90 Specified activity and specified geographical region.
218.91 Effective dates and definitions.
218.92 Permissible methods of taking.
218.93 Prohibitions.
218.94 Mitigation.
218.95 Requirements for monitoring and reporting.
218.96 Applications for Letters of Authorization.
218.97 Letter of Authorization.
218.98 Renewal and modifications of Letters of Authorization.
Subparts K-N [Reserved]
Subpart O_Taking and Importing Marine Mammals; U.S. Navy's Northwest
Training and Testing (NWTT) Study Area
218.140 Specified activity and specified geographical region.
218.141 Applicability dates.
218.142 Permissible methods of taking.
218.143 Prohibitions.
218.144 Mitigation.
218.145 Requirements for monitoring and reporting.
218.146 Applications for Letters of Authorization
218.147 Letters of Authorization.
218.148 Renewal and Modifications of Letters of Authorization and
Adaptive Management.
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Subparts P-W [Reserved]
Subpart X_Taking and Importing of Marine Mammals; Navy Operations of
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS
LFA) Sonar
218.230 Specified activity, level of taking, and species.
218.231 Effective dates.
218.232 Permissible methods of taking.
218.233 Prohibitions.
218.234 Mitigation.
218.235 Requirements for monitoring.
218.236 Requirements for reporting.
218.237 Applications for Letters of Authorization.
218.238 Letters of Authorization.
218.239 Renewal of Letters of Authorization.
218.240 Modifications to Letters of Authorization.
218.241 Adaptive management.
Authority: 16 U.S.C. 1361 et seq.
Source: 74 FR 28343, June 15, 2009, unless otherwise noted.
Subpart A [Reserved]
Subpart B_Takes of Marine Mammals Incidental to Specified Activities;
U.S. Navy Joint Logistics Over-the-Shore (JLOTS) Training Activities in
Virginia and North Carolina
Source: 80 FR 31321, June 2, 2015, unless otherwise noted.
Effective Date Note: At 80 FR 31321, June 2, 2015, subpart B was
added, effective June 2, 2015, through June 2, 2020.
Sec. 218.10 Specified activity and region.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occurs incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the JLOTS training areas, which is in nearshore shallow
waters at the Joint Expeditionary Base (JEB) Little Creek-Fort Story in
Virginia and at Camp Lejeune in North Carolina.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the JLOTS training activities in the JLOTS
training areas, which may occur any time of year, but not more than once
annually at JEB Little Creek-Fort Story, and once annually at Camp
Lejeune.
Sec. 218.11 Effective dates.
Regulations in this subpart are effective June 2, 2015, through June
2, 2020.
Sec. 218.12 Permissible methods of taking.
(a) Under Letters of Authorization (LOAs) issued pursuant to Sec.
218.17, the Holder of the Letter of Authorization may incidentally, but
not intentionally, take marine mammals by sound in the water from pile
driving activities within the area described in Sec. 218.10, provided
the activity is in compliance with all terms, conditions, and
requirements of these regulations and the appropriate LOA.
(b) The activities identified in Sec. 218.10(c) must be conducted
in a manner that minimizes, to the greatest extent practicable, any
adverse impacts on marine mammals and their habitat.
(c) The incidental take of marine mammals under the activities
identified in Sec. 218.10(c) is limited to Level B behavioral
harassment:
(1) Bottlenose dolphin (Tursiops truncatus)/Northern North Carolina
Estuarine System: 250 (50 per year);
(2) Bottlenose dolphin (Tursiops truncatus)/Southern North Carolina
Estuarine System: 300 (60 per year); and
(3) Atlantic spotted dolphin (Stenella frontalis)/Western North
Atlantic: 250 (50 per year).
Sec. 218.13 Prohibitions.
Notwithstanding takings contemplated in Sec. 218.12 and authorized
by an LOA issued under Sec. 216.106 of this chapter and Sec. 218.17,
no person in connection with the activities described in Sec. 218.10
may:
(a) Take any marine mammal not specified in Sec. 218.12(c);
(b) Take any marine mammal specified in Sec. 218.12(c) other than
by incidental take as specified in Sec. 218.12(c);
(c) Take a marine mammal specified in Sec. 218.12(c) if a finding
is made that
[[Page 146]]
such taking is having 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 an LOA issued under Sec. 216.106
of this chapter and Sec. 218.17.
Sec. 218.14 Mitigation.
(a) When conducting training and testing activities identified in
Sec. 218.10, the mitigation measures contained in the LOA issued under
Sec. 216.106 of this chapter and Sec. 218.17 must be implemented.
These mitigation measures include, but are not limited to:
(1) Establishing mitigation zone. (i) A mitigation zone of 60 yards
(55 m) around the pile being driven must be established.
(ii) Visual observation must be conducted starting 30 minutes prior
to, during, and until 30 minutes after the ELCAS (M) exercise within the
mitigation zone. The exercise must not commence if concentrations of
floating vegetation (Sargassum) are observed in the mitigation zone.
(2) Soft starts. (i) Soft starts, or gradually ramping up the power
of pile driving hammer, must be performed during impact installation
each day.
(ii) During a soft start, an initial set of strikes from the impact
hammer at reduced energy are performed before it is able to be operated
at full power and speed.
(3) Shutdown measures. (i) Pile driving must cease if a marine
mammal is visually detected within or approaching the mitigation zone.
(ii) Pile driving may resume if any one of the following conditions
is met:
(A) The animal is observed exiting the mitigation zone,
(B) The animal is thought to have exited the mitigation zone based
on its course and speed, or
(C) The mitigation zone has been clear from any additional sightings
for a period of 30 minutes.
(b) Marine species awareness training. (1) All personnel standing
watch on the bridge, Commanding Officers, Executive Officers, and
Lookouts must successfully complete the Marine Species Awareness
Training prior to standing watch or serving as a Lookout.
(2) The Marine Species Awareness Training must be designed to
improve the effectiveness of visual observations for marine resources,
including marine mammals.
(3) The training must provide information on sighting cues, visual
observation tools and techniques, and sighting notification procedures.
(c) Vessels. Vessels must avoid approaching marine mammals head on
and must maneuver to maintain a mitigation zone of 500 yards (457 m)
around observed whales and 200 yards (183 m) around all other marine
mammals (except bow riding dolphins), providing it is safe to do so.
(d) North Atlantic Right Whale Protection. When transiting within
the following areas between November 1 and April 30, the Navy must
practice increased vigilance, exercise extreme caution, and proceed at
the slowest speed that is consistent with safety, mission, and training
objectives:
(1) Chesapeake Bay: Within a 20 nm radius of the following (as
measured seaward from the COLREGS lines): 37 deg.00'36.9` North/
075 deg.57'50.5` West.
(2) Morehead City, North Carolina: Within a 20 nm radius of the
following (as measured seaward from the COLREGS lines): 34 deg.41'32.0`
North/076 deg.40'08.3` West.
(3) Wilmington, North Carolina, through South Carolina, and to
Brunswick, Georgia: Within a continuous area 20 nautical miles from
shore and west back to shore bounded by 34 deg.10'30` North/
077 deg.49'12` West; 33 deg.56'42` North/077 deg.31'30` West;
33 deg.36'30` North/077 deg.47'06` West; 33 deg.28'24` North/
078 deg.32'30` West; 32 deg.59'06` North/078 deg.50'18` West;
31 deg.50'00` North/080 deg.33'12` West; 31 deg.27'00` North/
080 deg.51'36` West.
Sec. 218.15 Requirements for monitoring and reporting.
(a) Monitoring measures--(1) Standard watch personnel. (i) Ships
operated by or for the Navy must have personnel assigned to stand watch
at all times, day and night, when moving through the water.
(ii) Watch personnel must undertake extensive training in accordance
with the U.S. Navy Lookout Training Handbook or civilian equivalent,
including on-the-job instruction and a formal
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Personal Qualification Standard program (or equivalent program for
supporting contractors or civilians), to certify that they have
demonstrated all necessary skills (such as detection and reporting of
floating or partially submerged objects).
(iii) While on watch, watch personnel must employ visual search
techniques, including the use of binoculars, using a scanning method in
accordance with the U.S. Navy Lookout Training Handbook or civilian
equivalent.
(iv) After sunset and prior to sunrise, watch personnel must employ
night visual search techniques, which could include the use of night
vision devices.
(v) A primary duty of watch personnel is to detect and report all
objects and disturbances sighted in the water that may be indicative of
a threat to the ship and its crew, such as debris, a periscope, surfaced
submarine, or surface disturbance.
(vi) Per safety requirements, watch personnel also report any marine
mammals sighted that have the potential to be in the direct path of the
ship as a standard collision avoidance procedure. Because watch
personnel are primarily posted for safety of navigation, range
clearance, and man-overboard precautions, they are not normally posted
while ships are moored to a pier.
(vii) When anchored or moored to a buoy, a watch team is still
maintained but with fewer personnel than when underway.
(viii) When moored or at anchor, watch personnel may maintain
security and safety of the ship by scanning the water for any
indications of a threat.
(ix) While underway, Navy ships (with the exception of submarines)
greater than 65 ft. (20 m) in length have at least two watch personnel;
Navy ships less than 65 ft. (20 m) in length, surfaced submarines, and
contractor ships have at least one watch person. While underway, watch
personnel are alert at all times and have access to binoculars. Due to
limited manning and space limitations, small boats and some craft
transferring cargo from ship to shore do not have dedicated watch
personnel, and the boat crew is responsible for maintaining the safety
of the boat and surrounding environment.
(x) All vessels use extreme caution and proceed at a ``safe speed''
so they can take proper and effective action to avoid a collision with
any sighted object or disturbance and can be stopped within a distance
appropriate to the prevailing circumstances and conditions.
(2) Lookouts. (i) Lookouts must perform similar duties to standard
watch personnel, and are also responsible for satisfying mitigation
requirements.
(ii) The Navy must have one Lookout positioned on the platform
(which could include a small boat, the elevated causeway, or the shore)
that must maximize the potential for sightings during pile driving and
pile removal.
(iii) The Lookout positioned on the elevated causeway or the shore
must be dedicated solely to diligent observation of the air and surface
of the water. They must have multiple observation objectives, which
include but are not limited to detecting the presence of biological
resources and recreational or fishing boats, observing the mitigation
zone, and monitoring for equipment and personnel safety concerns.
(iv) A Lookout positioned on a small boat may include a member of
the boat crew, and may be responsible for tasks in addition to observing
the air or surface of the water (e.g., navigation of a rigid hull
inflatable boat). However, a boat Lookout must, to the maximum extent
practicable and consistent with safety and training requirements, comply
with the observation objectives described above for a Lookout positioned
on the elevated causeway or the shore.
(v) Lookouts must also perform visual observation starting 30
minutes prior to, during, and 30 minutes after the exercise within a
mitigation zone of 60 yards (55 m) around the pile being driven.
(3) Integrated comprehensive monitoring program. (i) The Navy must
use the existing Integrated Comprehensive Monitoring Program (ICMP) and
its new ``study-based'' approach.
(ii) [Reserved]
(b) Reporting measures--(1) General notification of injured or dead
marine mammals. (i) Navy personnel must ensure that NMFS (regional
stranding coordinator) is notified immediately (or as
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soon as clearance procedures allow) if an injured or dead marine mammal
is found during or shortly after, and in the vicinity of, any Navy
training exercise.
(ii) The Navy must provide NMFS with species identification or
description of the animal(s), the condition of the animal(s) (including
carcass condition if the animal is dead), location, time of first
discovery, observed behaviors (if alive), and photographs or video (if
available).
(2) Annual monitoring and exercise report. (i) Reports from
individual monitoring events, results of analyses, publications, and
periodic progress reports for specific monitoring projects must be
posted to the Navy's Marine Species Monitoring web portal as they become
available.
(ii) Progress and results from all monitoring activity conducted
within the JLOTS training area must be summarized in an annual report.
This report must detail the monitoring protocol, summarize the data
recorded during monitoring, and estimate the number of marine mammals
that may have been harassed.
(iii) Draft reports should be combined with the Navy's Atlantic
Fleet Training and Testing exercise and monitoring reports and submitted
to NMFS for review by February 13 (for exercises) and April 1 (for
monitoring) each year. NMFS will review the report and provide comments
for incorporation within 3 months.
Sec. 218.16 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to the regulations in
this subpart, the U.S. Navy must apply for and obtain either an initial
LOA in accordance with Sec. 218.17.
Sec. 218.17 Letters of Authorization.
(a) An LOA, unless suspended or revoked, must be valid for a period
of time not to exceed the period of validity of this subpart.
(b) Each LOA must 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 of the LOA will be based on a determination that the
total number of marine mammals taken by the activity as a whole must
have no more than a negligible impact on the affected species or stock
of marine mammal(s).
Sec. 218.18 Modifications to Letters of Authorization.
(a) Except as provided in paragraph (b) of this section, no
substantive modification (including withdrawal or suspension) to the LOA
by NMFS, issued pursuant to Sec. 216.106 of this chapter and Sec.
218.17 and subject to the provisions of this subpart must be made until
after notification and an opportunity for public comment has been
provided.
(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. 218.12(c), an LOA issued
pursuant to Sec. 216.106 of this chapter and Sec. 218.17 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 C-D [Reserved]
Subpart E_Taking Marine Mammals Incidental to U.S. Marine Corps Training
Exercises at Brant Island Bombing Target and Piney Island Bombing Range,
Pamlico Sound, North Carolina
Source: 80 FR 13284, Mar. 13, 2015, unless otherwise noted.
Effective Date Note: At 80 FR 13284, Mar. 13, 2015, subpart E was
added, effective March 13, 2015, through March 12, 2020.
Sec. 218.40 Specified activity and location of specified activities.
(a) Regulations in this subpart apply only to the U.S. Marine Corps
(Marine
[[Page 149]]
Corps) for the incidental taking of marine mammals that occurs in the
area outlined in paragraph (b) of this section incidental to the
activities described in paragraph (c) of this section.
(b) The taking of marine mammals by the Marine Corps is only
authorized if it occurs within the Brant Island Target (BT-9) and Piney
Island Bombing Range (BT-11) bombing targets at the Marine Corps Air
Station Cherry Point Range Complex located within Pamlico Sound, North
Carolina (as depicted in Figure 3-1 of the Marine Corps' request for
regulations and Letter of Authorization). The BT-9 area is a water-based
bombing target and mining exercise area located approximately 52
kilometers (km) (32.3 miles (mi)) northeast of Marine Air Corps Station
Cherry Point. The BT-11 area encompasses a total of 50.6 square
kilometers (km\2\) (19.5 square miles (mi\2\)) on Piney Island located
in Carteret County, North Carolina.
(c) The taking of marine mammals by the Marine Corps is only
authorized if it occurs incidental to the following activities within
the annual amounts of use:
(1) The level of training activities in the amounts indicated here:
(i) Surface-to-Surface Exercises--up to 471 vessel-based sorties
annually at BT-9 and BT-11; and
(ii) Air-to-Surface Exercises--up to 14,586 air-based based sorties
annually at BT-9 and BT-11.
(2) The use of the following live ordnance for Marine Corps training
activities at BT-9, in the total amounts over the course of the five-
year rule indicated here:
(i) 30 mm HE--17,160 rounds;
(ii) 40 mm HE--52,100 rounds;
(iii) 2.75-inch Rocket--1,100 rounds;
(iv) 5-inch Rocket--340 rounds; and
(v) G911 Grenade--720 rounds.
(3) The use of the following inert ordnance for Marine Corps
training activities at BT-9 and BT-11, in the total amounts over the
course of the five-year rule indicated here:
(i) Small arms excluding .50 cal (7.62 mm)--2,628,050 rounds at BT-9
and 3,054,785 rounds at BT-11;
(ii) 0.50 Caliber arms--2,842,575 rounds at BT-9 and 1,833,875
rounds at BT-11;
(iii) Large arms (up to 25 mm)--602,025 rounds at BT-9 and 1,201,670
rounds at BT-11;
(iv) Rockets, inert (2.75-inch rocket, 2.75-inch illumination, 2.75-
inch white phosphorus, 2.75-inch red phosphorus; 5-inch rocket, 5-inch
illumination, 5-inch white phosphorus, 5-inch red phosphorus)--4,220
rounds at BT-9 and 27,960 rounds at BT-11;
(v) Bombs, inert (BDU-45 practice bomb, MK-76 practice bomb, MK-82
practice bomb, MK-83 practice bomb)--4,055 rounds at BT-9 and 22,114
rounds at BT-11; and
(vi) Pyrotechnics--4,496 rounds at BT-9 and 8,912 at BT-11.
Sec. 218.41 Effective dates.
Regulations in this subpart are effective from March 13, 2015 until
March 12, 2020.
Sec. 218.42 Permissible methods of taking.
(a) Under a Letter of Authorization issued pursuant to Sec. 216.106
of this chapter and Sec. 218.47, the Holder of the Letter of
Authorization may incidentally, but not intentionally, take marine
mammals by Level A and Level B harassment only within the area described
in Sec. 218.40(b), provided the activity is in compliance with all
terms, conditions, and requirements of these regulations and the
appropriate Letter of Authorization.
(b) The incidental take of marine mammals under the activities
identified in Sec. 218.40(c) is limited to the following species, by
the indicated method of take and the indicated number over a five-year
period:
(1) Level B Harassment:
(i) Atlantic bottlenose dolphin (Tursiops truncatus)--1,615.
(ii) [Reserved]
(2) Level A Harassment:
(i) Atlantic bottlenose dolphin--170.
(ii) [Reserved]
Sec. 218.43 Prohibitions.
No person in connection with the activities described in Sec.
218.40 shall:
(a) Take any marine mammal not specified in Sec. 218.42(c);
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(b) Take any marine mammal specified in Sec. 218.42(c) other than
by incidental take as specified in Sec. 218.42(c)(1) and (2);
(c) Take a marine mammal specified in Sec. 218.42(c) 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 of this chapter and Sec. 218.47.
Sec. 218.44 Mitigation.
(a) When conducting operations identified in Sec. 218.40(c), the
mitigation measures contained in the Letter of Authorization issued
under Sec. 216.106 of this chapter and Sec. 218.47 must be
implemented. These mitigation measures include, but are not limited to:
(b) Training Exercises at BT-9 and BT-11:
(1) Safety Zone:
(i) The Marine Corps shall establish and monitor a safety zone for
marine mammals comprising the entire Rattan Bay area at BT-11.
(ii) The Marine Corps shall establish and monitor a safety zone for
marine mammals comprising a radius of 914 meters (m) (3,000 feet) around
the target area at BT-9.
(2) For training exercises, the Marine Corps shall comply with the
monitoring requirements, including pre-mission and post-mission
monitoring, set forth in Sec. 218.45(c).
(3) When detonating explosives or delivering ordnance:
(i) If personnel observe any marine mammals within the safety zone
prescribed in paragraph (b)(1) of this section, or if personnel observe
marine mammals that are on a course that will put them within the
designated safety zone prior to surface-to-surface or air-to-surface
training exercises, the Marine Corps shall delay ordnance delivery and/
or explosives detonations until all marine mammals are no longer within
the designated safety zone.
(ii) If personnel cannot reacquire marine mammals detected in the
safety zone after delaying training missions, the Marine Corps shall not
commence activities until the next verified location of the animal is
outside of the safety zone and the animal is moving away from the
mission area.
(iii) If personnel are unable to monitor the safety zone prescribed
in paragraph (b)(1) of this section, then the Marine Corps shall delay
training exercises.
(iv) If daytime weather and/or sea conditions preclude adequate
surveillance for detecting marine mammals, then the Marine Corps shall
postpone training exercises until adequate sea conditions exist for
adequate monitoring of the safety zone prescribed in paragraph (b)(1) of
this section.
(4) Pre-Mission and Post-Mission Monitoring:
(i) Range operators shall conduct or direct visual surveys to
monitor BT-9 or BT-11 for marine mammals before and after each exercise.
Range operation and control personnel shall monitor the target area
through two tower-mounted safety and surveillance cameras.
(ii) Range operators shall use the surveillance camera's night
vision (i.e., infrared) capabilities to monitor BT-9 or BT-11 for marine
mammals during night-time exercises.
(iii) For BT-9, in the event that a marine mammal is sighted within
the 914-m (3,000-ft) radius around the target area, personnel shall
declare the area as fouled and cease training exercises. Personnel shall
commence operations in BT-9 only until the marine mammal moves beyond
and on a path away from the 914-m (3,000 ft) radius from the BT-9
target.
(iv) For BT-11, in the event that a marine mammal is sighted
anywhere within the confines of Rattan Bay, personnel shall declare the
water-based targets within Rattan Bay as fouled and cease training
exercises. Personnel shall commence operations in BT-11 only after the
animal has moved out of Rattan Bay.
(5) Range Sweeps for Safety Zone Monitoring and Delay of Exercises:
(i) The Marine Corps shall conduct a range sweep the morning of each
exercise day prior to the commencement of range operations.
(ii) The Marine Corps shall also conduct a range sweep after each
exercise
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following the conclusion of range operations.
(iii) Marine Corps Air Station personnel shall conduct the sweeps by
aircraft at an altitude of 100 to 300 m (328 to 984 ft) above the water
surface, at airspeeds between 60 to 100 knots.
(iv) The path of the sweeps shall run down the western side of BT-
11, circle around BT-9, and then continue down the eastern side of BT-9
before leaving the area.
(v) The maximum number of days that shall elapse between pre- and
post-exercise monitoring events shall be approximately 3 days, and will
normally occur on weekends.
(6) Cold Pass by Aircraft:
(i) For waterborne targets, the pilot must perform a low-altitude
visual check immediately prior to ordnance delivery at the bombing
targets both day and night to ensure the target area is clear of marine
mammals. This is referred to as a ``cold'' or clearing pass.
(ii) Pilots shall conduct the cold pass with the aircraft
(helicopter or fixed-winged) flying straight and level at altitudes of
61 to 914 m (200 to 3,000 ft) over the target area.
(iii) If marine mammals are present in the target area during a
range sweep, cold pass, or visual surveillance with the camera, the
Range Controller shall deny ordnance delivery to the target as
conditions warrant. If marine mammals are not present in the target
area, the Range Controller may grant clearance to the pilot as
conditions warrant.
(7) Vessel Operation:
(i) All vessels used during training operations shall abide by NMFS'
Southeast Regional Viewing Guidelines designed to prevent harassment to
marine mammals (http://www.nmfs.noaa.gov/pr/education/southeast/).
(ii) [Reserved]
Sec. 218.45 Requirements for monitoring and reporting.
(a) The Holder of the Letter of Authorization issued pursuant to
Sec. 216.106 of this chapter and Sec. 218.47 for activities described
in Sec. 218.40(c) is required to conduct the monitoring and reporting
measures specified in this section and Sec. 218.44 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 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
Director, Office of Protected Resources, National Marine Fisheries
Service, or designee, by letter or telephone (301-427-8401), at least 2
weeks prior to any modification to the activity identified in Sec.
218.40(c) that has the potential to result in the serious injury,
mortality, or Level A or Level B harassment of a marine mammal that was
not identified and addressed previously.
(c) Monitoring Procedures for Missions at BT-9 and BT-11:
(1) The Holder of this Authorization shall:
(i) Designate qualified on-site individual(s) to record the effects
of training exercises on marine mammals that inhabit Pamlico Sound;
(ii) Require operators of small boats, and other personnel
monitoring for marine mammals from watercraft to take the Marine Species
Awareness Training (Version 2), provided by the Department of the Navy.
(iii) Instruct pilots conducting range sweeps on marine mammal
observation techniques during routine Range Management Department
briefings. This training would make personnel knowledgeable of marine
mammals, protected species, and visual cues related to the presence of
marine mammals and protected species.
(iv) Continue the Long-Term Monitoring Program to obtain abundance,
group dynamics (e.g., group size, age census), behavior, habitat use,
and acoustic data on the bottlenose dolphins which inhabit Pamlico
Sound, specifically those around BT-9 and BT-11.
(v) Continue the Passive Acoustic Monitoring (PAM) Program to
provide additional insight into how dolphins use BT-9 and BT-11 and to
monitor for vocalizations.
[[Page 152]]
(vi) Continue to refine the real-time passive acoustic monitoring
system at BT-9 to allow automated detection of bottlenose dolphin
whistles.
(d) Reporting:
(1) Unless specified otherwise in the Letter of Authorization, the
Holder of the Letter of Authorization shall conduct all of the
monitoring and reporting required under the LOA and shall submit an
annual and comprehensive report to the Director, Office of Protected
Resources, National Marine Fisheries Service by a date certain to be
specified in the LOA. This report must include the following
information:
(i) Date and time of each training exercise;
(ii) A complete description of the pre-exercise and post-exercise
activities related to mitigating and monitoring the effects of the
training exercises on marine mammal populations;
(iii) Results of the Marine Corps monitoring, including numbers by
species/stock of any marine mammals injured or killed as a result of the
training exercises and number of marine mammals (by species, if
possible) that may have been harassed due to presence within the
applicable safety zone;
(iv) A detailed assessment of the effectiveness of the sensor-based
monitoring in detecting marine mammals in the area of the training
exercises; and
(v) Results of coordination with coastal marine mammal stranding
networks. The Marine Corps shall coordinate with the local NMFS
Stranding Coordinator to discuss any unusual marine mammal behavior and
any stranding, beached (live or dead), or floating marine mammals that
may occur at any time during training activities or within 24 hours
after completion of training.
(2) The Marine Corps will submit an annual report to NMFS by June
1st of each year starting in 2016. The first report will cover the time
period from issuance of the March 2015 Letter of Authorization through
March 12, 2016. Each annual report after that time will cover the time
period from March 13 through March 12, annually.
(3) The Marine Corps shall submit a draft comprehensive report on
all marine mammal monitoring and research conducted during the period of
these regulations to the Director, Office of Protected Resources, NMFS
at least 180 days prior to expiration of these regulations or 180 days
after the expiration of these regulations if the Marine Corps will not
request new regulations.
(i) The draft comprehensive report will be subject to review and
comment by NMFS. Prior to acceptance by NMFS, the Marine Corps must
address any recommendations made by NMFS, within 60 days of its receipt,
in the final comprehensive report.
(ii) [Reserved]
(4) General Notification of Injured or Dead Marine Mammals:
(i) The Marine Corps shall systematically observe training
operations for injured or disabled marine mammals. In addition, the
Marine Corps shall monitor the principal marine mammal stranding
networks and other media to correlate analysis of any dolphin strandings
that could potentially be associated with BT-9 or BT-11 training
operations.
(ii) Marine Corps personnel shall notify NMFS immediately, or as
soon as clearance procedures allow, if personnel find an injured,
stranded, or dead marine mammal during or shortly after, and in the
vicinity of, any training operations. The Marine Corps shall provide
NMFS with species or description of the animal(s), the condition of the
animal(s) (including carcass condition if the animal is dead), location,
time of first discovery, observed behaviors (if alive), and photo or
video (if available).
(iii) In the event that an injured, stranded, or dead marine mammal
is found by Marine Corps personnel that is not in the vicinity of, or
found during or shortly after operations, the Marine Corps personnel
will report the same information listed above as soon as operationally
feasible and clearance procedures allow.
(5) General Notification of a Ship Strike:
(i) In the event of a vessel strike, at any time or place, the
Marine Corps shall do the following:
(ii) Immediately report to NMFS the species identification (if
known), location (lat/long) of the animal (or the
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strike if the animal has disappeared), and whether the animal is alive
or dead (or unknown);
(iii) Report to NMFS as soon as operationally feasible the size and
length of the animal, an estimate of the injury status (e.g., dead,
injured but alive, injured and moving, unknown, etc.), vessel class/
type, and operational status;
(iv) Report to NMFS the vessel length, speed, and heading as soon as
feasible; and
(v) Provide NMFS with a photo or video, if equipment is available.
Sec. 218.46 Applications for Letters of Authorization.
To incidentally take marine mammals pursuant to these regulations,
the U.S. citizen (as defined at Sec. 216.103 of this chapter)
conducting the activities identified in Sec. 218.40 must apply for and
obtain either an initial Letter of Authorization in accordance with
Sec. 216.106 of this chapter and Sec. 218.47 or a renewal under Sec.
218.48.
Sec. 218.47 Letter of Authorization.
(a) To incidentally take marine mammals pursuant to these
regulations, the Marine Corps must apply for and obtain a Letter of
Authorization.
(b) A Letter of Authorization, unless suspended or revoked, may be
effective for a period of time not to exceed the expiration date of
these regulations.
(c) If a Letter of Authorization expires prior to the expiration
date of these regulations, the Marine Corps must apply for and obtain a
renewal of the Letter of Authorization.
(d) In the event of any changes to the activity or to mitigation and
monitoring measures required by a Letter of Authorization, the Marine
Corps must apply for and obtain a modification of the Letter of
Authorization as described in Sec. 218.48.
(e) The Letter of Authorization shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (i.e.,
mitigation) on the species, its habitat, and on the availability of the
species for subsistence uses; and
(3) Requirements for monitoring and reporting.
(f) Issuance of the Letter of Authorization shall be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of a Letter of Authorization shall
be published in the Federal Register within 30 days of a determination.
Sec. 218.48 Renewals and Modifications of Letters of Authorization.
(a) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 218.47 for the activity identified in Sec. 218.40
shall be renewed or modified upon request by the applicant, provided
that:
(1) The proposed specified activity and mitigation, monitoring, and
reporting measures, as well as the anticipated impacts, are the same as
those described and analyzed for these regulations (excluding changes
made pursuant to the adaptive management provision in Sec.
218.47(c)(1)), and
(2) NMFS determines that the mitigation, monitoring, and reporting
measures required by the previous Letter of Authorization under these
regulations were implemented.
(b) For Letter of Authorization modification or renewal requests by
the applicant that include changes to the activity or the mitigation,
monitoring, or reporting (excluding changes made pursuant to the
adaptive management provision in Sec. 218.47(c)(1)) that do not change
the findings made for the regulations or result in no more than a minor
change in the total estimated number of takes (or distribution by
species or years), NMFS may publish a notice of proposed Letter of
Authorization in the Federal Register, including the associated analysis
illustrating the change, and solicit public comment before issuing the
Letter of Authorization.
(c) A Letter of Authorization issued under Sec. 216.106 of this
chapter and Sec. 218.47 for the activity identified in Sec. 218.40 may
be modified by NMFS under the following circumstances:
(1) Adaptive Management--NMFS may modify (including augment) the
existing mitigation, monitoring, or reporting measures (after consulting
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with the Marine Corps regarding the practicability of the modifications)
if doing so creates a reasonable likelihood of more effectively
accomplishing the goals of the mitigation and monitoring set forth in
the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision
to modify the mitigation, monitoring, or reporting measures in a Letter
of Authorization include:
(A) Results from the Marine Corps' monitoring from the previous
year(s);
(B) Results from other marine mammal and/or sound research or
studies; or
(C) Any information that reveals marine mammals may have been taken
in a manner, extent, or number not authorized by these regulations or
subsequent Letters of Authorization.
(ii) If, through adaptive management, the modifications to the
mitigation, monitoring, or reporting measures are substantial, NMFS
shall publish a notice of proposed Letter of Authorization in the
Federal Register and solicit public comment.
(2) Emergencies--If NMFS 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. 218.42(c), a Letter of Authorization
may be modified without prior notice or opportunity for public comment.
NMFS will publish a notice in the Federal Register within 30 days
subsequent to the action.
Subparts F-G [Reserved]
Subpart H_Taking and Importing Marine Mammals; U.S. Navy's Hawaii-
Southern California Training and Testing (HSTT)
Source: 78 FR 78152, Dec. 24, 2013, unless otherwise noted.
Effective Date Note: At 78 FR 78152, Dec. 24, 2013, subpart H was
added, effective Dec. 24, 2013, through Dec. 24, 2018.
Sec. 218.70 Specified activity and specified geographical region.
(a) Regulations in this subpart apply only to the U.S. Navy for the
taking of marine mammals that occurs in the area outlined in paragraph
(b) of this section and that occurs incidental to the activities
described in paragraph (c) of this section.
(b) The taking of marine mammals by the Navy is only authorized if
it occurs within the HSTT Study Area, which is comprised of established
operating and warning areas across the north-central Pacific Ocean, from
Southern California west to Hawaii and the International Date Line (see
Figure 1-1 in the Navy's application). The Study Area includes three
existing range complexes: the Southern California (SOCAL) Range Complex,
Hawaii Range Complex (HRC), and Silver Strand Training Complex (SSTC).
In addition, the Study Area includes other areas where training and
testing activities occur, including the pierside locations in San Diego
Bay and Pearl Harbor, the transit corridor between SOCAL and Hawaii, and
throughout the San Diego Bay.
(c) The taking of marine mammals by the Navy is only authorized if
it occurs incidental to the following activities:
(1) Non-impulsive Sources Used During Training:
(i) Mid-frequency (MF) Source Classes:
(A) MF1--an average of 11,588 hours per year.
(B) MF1K--an average of 88 hours per year.
(C) MF2--an average of 3,060 hours per year.
(D) MF2K--an average of 34 hours per year.
(E) MF3--an average of 2,336 hours per year.
(F) MF4--an average of 888 hours per year.
(G) MF5--an average of 13,718 items per year.
(H) MF11--an average of 1,120 hours per year.
(I) MF12--an average of 1,094 hours per year.
(ii) High-frequency (HF) and Very High-frequency (VHF) Source
Classes:
(A) HF1--an average of 1,754 hours per year.
(B) HF4--an average of 4,848 hours per year.
(iii) Anti-Submarine Warfare (ASW) Source Classes:
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(A) ASW1--an average of 224 hours per year.
(B) ASW2--an average of 1,800 items per year.
(C) ASW3--an average of 16,561 hours per year.
(D) ASW4--an average of 1,540 items per year.
(iv) Torpedoes (TORP) Source Classes:
(A) TORP1--an average of 170 items per year.
(B) TORP2--an average of 400 items per year.
(2) Non-impulsive Sources Used During Testing:
(i) Low-frequency (LF) Source Classes:
(A) LF4--an average of 52 hours per year.
(B) LF5--an average of 2,160 hours per year.
(C) LF6--an average of 192 hours per year.
(ii) Mid-frequency (MF):
(A) MF1--an average of 180 hours per year.
(B) MF1K--an average of 18 hours per year.
(C) MF2--an average of 84 hours per year.
(D) MF3--an average of 392 hours per year.
(E) MF4--an average of 693 hours per year.
(F) MF5--an average of 5,024 items per year.
(G) MF6--an average of 540 items per year.
(H) MF8--an average of 2 hours per year.
(I) MF9--an average of 3,039 hours per year.
(J) MF10--an average of 35 hours per year.
(K) MF12--an average of 336 hours per year.
(iii) High-frequency (HF) and Very High-frequency (VHF):
(A) HF1--an average of 1,025 hours per year.
(B) HF3--an average of 273 hours per year.
(C) HF4--an average of 1,336 hours per year.
(D) HF5--an average of 1,094 hours per year.
(E) HF6--an average of 3,460 hours per year.
(iv) ASW:
(A) ASW1--an average of 224 hours per year.
(B) ASW2--an average of 2,260 items per year.
(C) ASW2--an average of 255 hours per year.
(D) ASW3--an average of 1,278 hours per year.
(E) ASW4--an average of 477 items per year.
(v) TORP:
(A) TORP1--an average of 701 items per year.
(B) TORP2--an average of 732 items per year.
(vi) Acoustic Modems (M):
(A) M3--an average of 4,995 hours per year.
(B) [Reserved]
(vii) Swimmer Detection Sonar (SD):
(A) SD1--an average of 38 hours per year.
(B) [Reserved]
(viii) Airguns (AG):
(A) AG--an average of 5 airgun uses per year.
(B) [Reserved]
(ix) Synthetic Aperture Sonar (SAS):
(A) SAS1--an average of 2,700 hours per year.
(B) SAS2--an average of 4,956 hours per year.
(C) SAS3--an average of 3,360 hours per year.
(3) Annual Number of Impulsive Source Detonations During Training:
(i) Explosive Classes:
(A) E1 (0.1 lb to 0.25 lb NEW)--an average of 19,840 detonations per
year.
(B) E2 (1.26 lb to 0.5 lb NEW)--an average of 1,044 detonations per
year.
(C) E3 (0.5 lb to 2.5 lb NEW)--an average of 3,020
detonations per year.
(D) E4 (2.5 lb to 5 lb NEW)--an average of 668
detonations per year.
(E) E5 (5 lb to 10 lb NEW)--an average of 8,154
detonations per year.
(F) E6 (10 lb to 20 lb NEW)--an average of 538
detonations per year.
(G) E7 (20 lb to 60 lb NEW)--an average of 407
detonations per year.
(H) E8 (60 lb to 100 lb NEW)--an average of 64
detonations per year.
(I) E9 (100 lb to 250 lb NEW)--an average of 16
detonations per year.
(J) E10 (250 lb to 500 lb NEW)--an average of 19
detonations per year.
(K) E11 (500 lb to 650 lb NEW)--an average of 8
detonations per year.
[[Page 156]]
(L) E12 (