[Federal Register Volume 61, Number 70 (Wednesday, April 10, 1996)]
[Rules and Regulations]
[Pages 15884-15891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8494]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 216 and 228

[Docket No. 950504128-6085-02; I.D. 031095A]
RIN 0648-AG80


Small Takes of Marine Mammals; Harassment Takings Incidental to 
Specified Activities in Arctic Waters; Regulation Consolidation; Update 
of Office of Management and Budget (OMB) Approval Numbers

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Interim final rule.

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SUMMARY: The Marine Mammal Protection Act (MMPA) Amendments of 1994 
established an expedited process by which citizens of the United States 
can apply for an authorization to take incidentally, but not 
intentionally, small numbers of marine mammals by harassment. This rule 
sets forth the process for applying for, and obtaining, an 
authorization in Arctic waters. This rule also makes minor 
modifications to the existing regulations that clarify the requirements 
for petitioning for and obtaining a small take authorization.
    This rule also updates OMB approval numbers for application and 
reports of incidental small takes.

EFFECTIVE DATE: This rule is effective on May 10, 1996.

ADDRESSES: A copy of the Environmental Assessment (EA), and/or the 
results of a February 8-9, 1994 meeting cited in the preamble may be 
obtained by writing to the Chief, Marine Mammal Division, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910-3226 or by telephoning the person 
below (see FOR FURTHER INFORMATION CONTACT).
    Comments regarding the burden-hour estimate or any other aspect of 
the collection of information requirement contained in this rule should 
be sent to the above individual and to the Office of Information and 
Regulatory Affairs, OMB, Attention: NOAA Desk Officer, Washington, D.C. 
20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of 
Protected Resources, NMFS, (301) 713-2055.

SUPPLEMENTARY INFORMATION:

Background

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.), directs 
the Secretary of Commerce to allow, upon request by U.S. citizens 
engaged in a specific activity (other than commercial fishing) in a 
specified geographical region, the incidental, but not intentional, 
taking of small numbers of marine mammals, if certain findings are made 
and regulations are issued. Under the MMPA, the term ``taking'' means 
to harass, hunt, capture or kill. Pursuant to part 228 of title 50, 
permission may be granted for periods up to 5 years if NMFS finds, 
after notice and opportunity for public comment, that the taking will 
have a negligible impact on the species or stock(s) of marine mammals 
and will not have an unmitigable adverse impact on the availability of 
the species or stock(s) for subsistence uses. In addition, NMFS must 
prescribe activity-specific regulations that include permissible 
methods of taking and other means effecting the least practicable 
adverse impact on the species and its habitat, and on the availability 
of the species for subsistence uses, paying particular attention to 
rookeries, mating grounds and areas of similar significance. These 
regulations must include requirements pertaining to the monitoring and 
reporting of such taking.
    The Marine Mammal Protection Act Amendments of 1994 amended section 
101(a)(5) of the MMPA to establish an expedited process by which 
citizens of the United States can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. It 
established specific time limits for public notice and comment on any 
requests for authorization under this new provision.
    The legislative history notes that NMFS should use the general 
rulemaking authority available under section 112 of the MMPA to 
establish a process for granting authorization in the case of small 
takes by harassment in the Arctic Ocean (H.R. Rep. No. 439, 103d Cong., 
2d Sess. 29, 30 (Mar. 21, 1994)). As a result of that mandate, NMFS has 
expedited this rulemaking process in order to have incidental 
harassment regulations effective for Arctic activities prior to the 
1996 open water season in the Beaufort Sea.
    This rule will result in a more streamlined and cost-effective 
method for obtaining small take by incidental harassment authorizations 
in Arctic waters, without lessening the MMPA's protection of species 
and stocks of marine mammals. This rule does not cover incidental 
harassment authorizations for non-Arctic waters. A final rule, which 
will include an expanded discussion on what constitutes harassment for 
purposes of issuing authorizations under this subpart, remains under 
development. Until that final rule is published, NMFS will continue to 
process and grant incidental harassment authorizations under the 
statutory provisions and requirements.

Comments and Responses

    On May 31, 1995 (60 FR 28379), NMFS issued a proposed rule to 
modify regulations found at 50 CFR part 228, subpart A to include the 
simplified process for authorizing the incidental taking of small 
numbers of marine mammals by harassment without the need to issue 
specific regulations governing the taking of marine mammals for each 
and every activity. The proposed rule set forth: (1) The process for 
obtaining an authorization;

[[Page 15885]]
(2) the specific time limits imposed by the statute for NMFS review and 
publication, and public notice and comment, on any requests for 
authorization that would be granted under this paragraph; and (3) the 
requirements for scientific peer review of an applicant's monitoring 
plans and submission of a plan of cooperation (if the subject activity 
may affect the availability of a species or stock of marine mammal for 
taking for subsistence purposes). The proposed rule also made minor 
changes to the existing regulations to clarify the requirements for 
petitioning and obtaining a small take authorization under section 
101(a)(5)(A) of the MMPA.
    Based on a request from the U.S. Navy (Navy), the comment period 
was extended until October 16, 1995 (60 FR 35891, July 12, 1995). 
During the comment period, NMFS received eight letters commenting on 
the proposed rule. An additional 41 letters were received in response 
to an Internet message but without review of the proposed rule. 
Comments regarding incidental harassment authorizations in the Arctic 
are discussed below. Response to comments outside the scope of Arctic 
activities are reserved for a future rule.

Arctic Subsistence Concerns

    Comment: The USCG recommends that Sec. 228.4(a)(7) (revised as 
Sec. 216.104(a)(7)) be modified to clarify that the only subsistence 
uses that are at issue are those defined in the MMPA.
    Response: The term ``subsistence'' that applies to this rule, was 
previously defined in Sec. 216.3; no changes to that definition are 
considered necessary at this time. That definition makes any additional 
clarifying language unnecessary.

Arctic Subsistence Concerns-Plans of Cooperation

    Comment: The USCG believes that submitting a plan of cooperation is 
not required by the MMPA, and, while it may be an ideal way to 
implement the statutory requirements for determining impacts to Arctic 
subsistence users, such an extensive plan of cooperation is not 
necessary in every case.
    Response: NMFS agrees that a formal plan of cooperation may not be 
necessary for all activities that might result in the incidental 
harassment of marine mammal species that are also sought for 
subsistence purposes. As a result of the comment, NMFS has modified the 
final rule accordingly. However, in order for NMFS to determine that 
there will not be an unmitigable adverse impact on the availability of 
marine mammals for taking for subsistence purposes, the information 
items specified in Sec. 216.104(a)(11) (previously Sec. 228.4(a)(11)) 
will still need to be provided. If neither a plan of cooperation has 
been submitted nor meetings with subsistence communities have been 
scheduled, and if during the comment period evidence is provided 
indicating that an adverse impact to subsistence needs will result from 
the activity, an authorization may be delayed to resolve this 
disagreement.
    Comment: The AEWC noted that the plan of cooperation submitted by 
an applicant must be based on mitigation measures that have been 
approved by the affected communities and their representatives. The 
MMPA requires NMFS to prescribe, where applicable, the measures NMFS 
determines are necessary to ensure that there is no unmitigable adverse 
impact on the availability of the species or stock for subsistence 
uses. As a result, the commenter believes, NMFS should take a more 
proactive role in developing plans of cooperation; consult with the 
subsistence community as directed by the NOAA-AEWC Cooperative 
Agreement for bowheads; and resolve disagreements between parties.
    Response: While it is preferable for a plan of cooperation to 
contain mitigation measures that are agreed to by the involved parties, 
a final determination on necessary marine mammal mitigation measures 
remains with NMFS. It is not mandatory under the MMPA that a plan of 
cooperation meet with total approval by affected Alaskan communities 
and their representatives. However, NMFS emphasizes that plans of 
cooperation should contain more than a simple schedule of meetings with 
affected communities. With little time provided by the MMPA to make a 
determination on whether to issue an authorization, unless applicants 
have either met with Native American groups or have scheduled a meeting 
with them to discuss the plan of cooperation prior to submission of an 
application (with its plan of cooperation), processing the application 
may be delayed. The final rule clarifies this meeting requirement and 
requires the draft plan of cooperation to be made available to affected 
communities at the same time the application is submitted to NMFS. 
However, the MMPA does not, as the commenter suggests, require NMFS to 
resolve disagreements related to the plan of cooperation prior to 
issuance of an authorization. Initiation of the NOAA-AEWC Cooperation 
Agreement consultation process begins when NMFS forwards a proposed 
authorization to the AEWC.
    Because the rule requires an applicant to submit either a plan of 
cooperation for any Arctic activities that will have an impact on those 
species or stocks of marine mammals that are also sought for 
subsistence uses, or a description of planned mitigation measures, 
Native Americans (and others) may submit comments to NMFS on the 
adequacy of a plan of cooperation or planned mitigation measures and 
any disagreements the two parties may have on necessary mitigation. 
NMFS will give full consideration to these comments, to any previously 
agreed measures for the protection of marine mammals, and the success 
of those measures, when determining appropriate mitigation measures for 
a new authorization.

Arctic Subsistence Concerns-Monitoring Plans

    Comment: The USCG questions the requirement for peer-review of 
monitoring plans under the provision for activity-specific regulations, 
since the statute only mentions it under provisions for incidental 
harassment authorizations.
    Response: Paragraph 216.105(b)(3) (previously Sec. 228.5(b)(3)) 
does not mandate peer-review of monitoring plans; it only notes that 
under activity-specific regulations a peer-review process may be 
established, if warranted. The need for peer-review would be determined 
through notice and comment on the proposed rule for the applicant's 
activity.
    Comment: The USCG believes that Sec. 228.8(d) (previously 
Sec. 216.108(d)) places NMFS in control of the independent peer-review 
process called for by the statute. However, they believe that Federal 
agencies should have the discretion to use the NMFS peer-review process 
or to develop their own process.
    Response: Although NMFS remains responsible for accepting or 
rejecting a monitoring plan, NMFS does not control the peer-review 
process but only serves as its facilitator. While NMFS would not object 
to a different process for peer-review of monitoring plans, applicants 
should recognize that a peer-review process may take some time to 
establish independently. As a result, under an independent peer-review 
process, NMFS could no longer assure the applicant that the statutory 
time requirements for issuing an authorization would be met.
    Comment: The AEWC also noted the need for reliable scientific 
research on interactions between marine mammals and oil and gas 
exploration activities. In

[[Page 15886]]
the interest of promoting both reliability and consistency in this 
research, the AEWC recommended that the process for monitoring and 
reporting agreed to at the February 1994 meeting between NMFS, AEWC, 
the North Slope Borough and the oil and gas industry, be incorporated 
into the regulations. In addition, the AEWC wanted to see the results 
of that meeting discussed in the preamble to the final regulations.
    Response: NMFS agrees that, to the extent possible, a prior year's 
research results should be reviewed by the present-year, peer-review 
committee. This would provide some consistency in research objectives. 
However, because the referenced 1994 meeting was specific to Beaufort 
Sea oil and gas exploration, incorporating those agreements (e.g., 
number and independence of reviewers) into these regulations would 
limit flexibility to modify them for different activities and changing 
conditions, and readers would be unlikely to benefit sufficiently from 
summarizing the meeting, detailed discussion of the results of that 
meeting are not warranted in these procedural regulations. A copy of 
the final minutes to the February 8-9, 1994 meeting is available from 
NMFS (see ADDRESSES) and will be available for reference for future 
U.S. Arctic oil and gas activities.
    Comment: The North Slope Borough notes that there are species in 
addition to bowhead whales in Arctic waters and NMFS should more 
clearly define how the authorization process applies to beluga whales 
and the seal species found in Arctic waters. The commenter also wants 
the agency to consult directly with the Alaska Beluga Whale Committee 
and the Indigenous People's Council for Marine Mammals to establish 
mechanisms for subsistence user involvement in decisions affecting 
these species.
    Response: When an applicant requests an authorization for the 
incidental harassment of marine mammals, that person is expected to 
apply for all marine mammals that can be reasonably expected to be 
taken by harassment and/or be affecting those species availability for 
subsistence purposes. The MMPA requires NMFS to announce receipt of an 
application, issuance of a proposed authorizations, and to request 
public comment in the Federal Register, newspapers of general 
circulation, appropriate electronic media and to all locally affected 
communities. NMFS will also provide copies of the proposed 
authorization for review directly to those organizations that NMFS 
knows to have an interest.

Discussion

    Background and rationale on processing applications for Arctic 
activities, monitoring and reporting requirements and peer review of 
monitoring plans, were published on May 31, 1995 (60 FR 28379) and are 
not repeated here. Reviewers should refer to the notice of proposed 
rulemaking for additional information.

Changes From the Proposed Rule

    1. Based upon comment, a requirement is being added that applicants 
with activities in the Arctic that might result in a take of species or 
stocks that are also taken for subsistence purposes, need to either 
schedule a meeting prior to submitting the application or meet prior to 
the close of the comment period and provide the affected subsistence 
community with a draft plan of cooperation.
    2. A new definition for the term ``Arctic waters'' is provided.
    3. A new paragraph has been added at Sec. 216.104(a)(5) to include 
in one location information requested on assessing incidental takes of 
marine mammals by the applicant's activity.
    4. The mandatory provision that applicants affecting Arctic 
subsistence needs must provide a plan of cooperation has been modified.
    5. The interim rule clarifies that reports are required to be 
submitted, within 90 days of completion of any individual components of 
the activity (if any), or 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.
    6. The interim rule clarifies that 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.
National Environmental Policy Act
    The amended regulations in Part 216 subpart I of chapter 50 
implement section 101(a)(5)(D) of the MMPA, as it pertains to 
incidental harassment authorizations in Arctic waters. This rule, 
mandated by the 1994 Amendments, provides a mechanism to authorize the 
incidental, but not intentional, taking by harassment of small numbers 
of marine mammals by U.S. citizens engaged in a specified activity in a 
specified geographic region. The AA has determined, based upon a 
programmatic EA prepared for this action under NEPA, that 
implementation of these general regulations will not have a significant 
impact on the human environment. As a result of this determination, an 
environmental impact statement is not required. A copy of the EA is 
available upon request (see ADDRESSES).
    In addition, while each proposed incidental harassment 
authorization will be reviewed independently to determine its impact on 
the human environment, NMFS believes that, because the finding required 
for incidental harassment authorizations is that the taking (by 
harassment) would not result in any serious injury or death to a marine 
mammal, would have no more than a negligible impact on marine mammals 
and their habitat, and would not have an unmitigable adverse impact on 
the availability of the species or stock(s) for subsistence uses, the 
majority of the authorizations should be ``categorically excluded'' (as 
defined in 40 CFR 1508.4) from the preparation of either environmental 
impact statements or EAs under NEPA and section 6.02.c.3(i) of NOAA 
Administrative Order 216-6 for Environmental Review Procedures 
(published August 6, 1991).
Classification
    This action has been determined to be not significant for purposes 
of E.O. 12866.
    The Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Small Business Administration 
at the proposed rule stage that, if adopted, this action would not have 
a significant economic impact on a substantial number of small entities 
since it would simply establish an expedited process for the review and 
issuance of authorizations for the incidental taking of small numbers 
of marine mammals by harassment while conducting activities (other than 
commercial fishing) in and near marine waters. Without authorization, 
the taking of marine mammals, even by harassment, is prohibited.
    This rule contains collection-of-information requirements subject 
to the Paperwork Reduction Act and which has been approved by OMB under 
OMB Control No. 0648-0151. Notwithstanding any other provision of law, 
no person is required to respond to nor shall a person be subject to a 
penalty for failure to comply with a collection of information subject 
to the requirements of the Paperwork Reduction Act unless that 
collection of information displays a currently valid OMB control 
number.
    The average burden for this collection is estimated to be 
approximately 214 hours per activity (range 80-483 hours depending upon 
complexity) for applications and 32.5 hours per activity

[[Page 15887]]

(range 16-80 hours) for reporting. These hours include the time for 
gathering and maintaining the data needed, and completing and reviewing 
the collection of information including annual reports. It does not 
include time for monitoring the activity by observers. Send comments 
regarding these reporting burden estimates or any other aspect of the 
collections of information, including suggestions for reducing the 
burdens, to NMFS and OMB (see ADDRESSES).
    Under NOAA Administrative Order 205-11, 7.01, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere has delegated 
authority to sign material for publication in the Federal Register to 
the Assistant Administrator for Fisheries, NOAA.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 216

    Administrative practice and procedure, Imports, Indians, Marine 
mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

50 CFR Part 228

    Marine mammals, Reporting and recordkeeping requirements.

    Dated: March 28, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
    For the reasons set out in the preamble, 15 CFR chapter IX and 
under the authority of 16 U.S.C 1361 et seq. 50 CFR chapter II are 
amended as follows:

15 CFR Chapter IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 44 U.S.C, 3501 et seq.

    2. In Sec. 902.1, paragraph (b) the table is amended by removing in 
the left column under 50 CFR, the entries ``228.4'', ``228.6'', 
``228.14'', ``228.25'', ``228.37'', and ``228.55'', and in the right 
column, in corresponding positions, the control numbers ``-0151''; and 
by adding, in numerical order, the following entries to read as 
follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
                                                             Current OMB
                                                               control  
    CFR part or section where the information collection     number (all
                   requirement is located                      numbers  
                                                              begin with
                                                                0648-)  
------------------------------------------------------------------------
                  *        *        *        *        *                 
50 CFR                                                                  
                  *        *        *        *        *                 
  216.104..................................................        -0151
  216.106..................................................        -0151
  216.108..................................................        -0151
  216.114..................................................        -0151
  216.125..................................................        -0151
  216.145..................................................        -0151
  216.155..................................................        -0151
                  *        *        *        *        *                 
------------------------------------------------------------------------

50 CFR  Chapter II

PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS 
INCIDENTAL TO SPECIFIED ACTIVITIES

    3. Subpart B (Sec. 228.11 through Sec. 228.14), subpart C 
(Sec. 228.21 through Sec. 228.26), subpart E (Sec. 228.41 through 
Sec. 228.48), and subpart F (Sec. 228.51 through Sec. 228.57) of part 
228 are redesignated as subpart J (Sec. 216.111 through Sec. 216.114), 
subpart K (Sec. 216.121 through Sec. 216.126), subpart M (Sec. 216.141 
through Sec. 216.148) and subpart N (Sec. 216.151 through 
Sec. 216.157), respectively, in part 216.

PART 228--[REMOVED]

    4. Part 228 is removed.

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    5. The authority citation for part 216 continues to read as 
follows:

    Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.

    6. In Sec. 216.3, a new definition for ``Director, Office of 
Protected Resources is added, in alphabetical order, to read as 
follows:


Sec. 216.3  Definitions.

* * * * *
    Director, Office of Protected Resources means Director, Office of 
Protected Resources, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910.
* * * * *
    7. A new subpart I is added to read as follows:
Subpart I--General Regulations Governing Small Takes of Marine Mammals 
Incidental to Specified Activities
Sec.
216.101  Purpose.
216.102  Scope.
216.103  Definitions.
216.104  Submission of requests.
216.105  Specific regulations.
216.106  Letter of authorization.
216.107  Incidental harassment authorization for Arctic waters.
216.108  Requirements for monitoring and reporting under incidental 
harassment authorizations for Arctic waters.

Subpart I--General Regulations Governing Small Takes of Marine 
Mammals Incidental to Specified Activities


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 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.

[[Page 15888]]



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;
    (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.
    (2) Through notice in the Federal Register, newspapers of general

[[Page 15889]]
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.
    (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

[[Page 15890]]
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 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 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.
    8. In the list below, for each section indicated in the left 
column, remove the reference indicated in the middle column from 
wherever it appears in the section, and add the reference to the 
section indicated in the right column.

------------------------------------------------------------------------
         Section                 Remove                   Add           
------------------------------------------------------------------------
                                Subpart J                               
                                                                        
Sec.  216.113              Sec.  228.13(a)     Sec.  216.113(a)         
Sec.  216.114              Sec.  228.14(c)     Sec.  216.114(c)         
                                                                        
                                Subpart K                               
                                                                        
Sec.  216.123              Sec.  228.6         Sec.  216.106            
Sec.  216.123              Sec.  228.21        Sec.  216.121            
Sec.  216.124              Sec.  228.23        Sec.  216.123            
Sec.  216.124              Sec.  228.6         Sec.  216.106            
Sec.  216.124              Sec.  228.21        Sec.  216.121            
Sec.  216.125              Sec.  228.6         Sec.  216.106            
Sec.  216.125              Sec.  228.21        Sec.  216.121            
Sec.  216.126              Sec.  228.6         Sec.  216.106            
Sec.  216.126              Sec.  228.26(b)     Sec.  216.126(b)         
Sec.  216.126              Sec.  228.21        Sec.  216.121            
                                                                        
                                Subpart M                               
                                                                        
Sec.  216.143              Sec.  228.41        Sec.  216.141            
Sec.  216.143              Sec.  228.45(b)(1)  Sec.  216.145(b)(1)      
Sec.  216.144              Sec.  228.43        Sec.  216.143            
Sec.  216.144              Sec.  228.6         Sec.  216.106            
Sec.  216.144              Sec.  228.46        Sec.  216.146            
Sec.  216.146              Sec.  228.41        Sec.  216.141            
Sec.  216.146              Sec.  228.6         Sec.  216.106            
Sec.  216.147              Sec.  228.6         Sec.  216.106            
Sec.  216.147              Sec.  228.41        Sec.  216.141            
Sec.  216.147              Sec.  228.45(d)     Sec.  216.145(d)         
Sec.  216.147              Sec.  228.41(b)     Sec.  216.141(b)         
Sec.  216.147              Sec.  228.43(b)     Sec.  216.143(b)         
Sec.  216.148              Sec.  228.6         Sec.  216.106            
Sec.  216.148              Sec.  228.47        Sec.  216.147            
Sec.  216.148              Sec.  228.41(b)     Sec.  216.141(b)         
                                Subpart N                               
                                                                        
Sec.  216.153              Sec.  228.6         Sec.  216.106            
Sec.  216.153              Sec.  228.51(a)     Sec.  216.151(a)         
Sec.  216.154              Sec.  228.53        Sec.  216.153            
Sec.  216.154              Sec.  228.6         Sec.  216.106            
Sec.  216.154              Sec.  228.56        Sec.  216.156            
Sec.  216.156              Sec.  228.6         Sec.  216.106            
Sec.  216.156              Sec.  228.51(a)     Sec.  216.151(a)         

[[Page 15891]]
                                                                        
Sec.  216.156              Sec.  228.55(f)     Sec.  216.155(f) and (g) 
                            and (g)                                     
Sec.  216.156              Sec.  228.51(b)     Sec.  216.151(b)         
Sec.  216.156              Sec.  228.53(b)     Sec.  216.153(b)         
Sec.  216.156              Sec.  228.55(g)     Sec.  216.155(g)         
Sec.  216.157              Sec.  228.6         Sec.  216.106            
Sec.  216.157              Sec.  228.46        Sec.  216.146            
Sec.  216.157              Sec.  228.51        Sec.  216.151            
------------------------------------------------------------------------


    9. In part 216, subpart L (Sec. 216.131 through Sec. 216.138), 
subpart O (Sec. 216.161 through Sec. 216.169), subpart P (Sec. 216.170 
through Sec. 216.179), subpart Q (Sec. 216.180 through Sec. 216.189) 
and subpart R (Sec. 216.190 through Sec. 216.199) are added and 
reserved.

[FR Doc. 96-8494 Filed 4-9-96; 8:45 am]
BILLING CODE 3510-22-P