[Title 50 CFR ]
[Code of Federal Regulations (annual edition) - October 1, 2009 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          50


          Parts 200 to 599

                         Revised as of October 1, 2009


          Wildlife and Fisheries
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of October 1, 2009
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

[[Page ii]]

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 50:
          Chapter II--National Marine Fisheries Service, 
          National Oceanic and Atmospheric Administration, 
          Department of Commerce                                     3
          Chapter III--International Fishing and Related 
          Activities                                               883
          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     1001
          Chapter V--Marine Mammal Commission                     1073
  Finding Aids:
      Table of CFR Titles and Chapters........................    1099
      Alphabetical List of Agencies Appearing in the CFR......    1119
      List of CFR Sections Affected...........................    1129

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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, 2009), 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 
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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 
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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.

OBSOLETE PROVISIONS

    Provisions that become obsolete before the revision date stated on 
the cover of each volume are not carried. Code users may find the text 
of provisions in effect on a given date in the past by using the 
appropriate numerical list of sections affected. For the period before 
January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate 
volumes. For the period beginning January 1, 2001, a ``List of CFR 
Sections Affected'' is published at the end of each CFR volume.

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 
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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 
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CFR INDEXES AND TABULAR GUIDES

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and Finding Aids. This volume contains the Parallel Table of Authorities 
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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.




[[Page vii]]



REPUBLICATION OF MATERIAL

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    October 1, 2009.







[[Page ix]]



                               THIS TITLE

    Title 50--Fish and Wildlife is composed of nine volumes. The parts 
in these volumes are arranged in the following order: Parts 1-16; part 
17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of 17.95), part 17 
(17.96 to 17.99(h)), part 17 (17.99(i) to end of part 17), parts 18-199, 
parts 200-599, parts 600-659, and part 660 to end. The first six volumes 
(parts 1-16, part 17 (17.1 to 17.95(b)), part 17 (17.95(c) to end of 
17.95), part 17 (17.96 to 17.99(h)), part 17 (17.99(i) to end of part 
17), and parts 18-199) contain the current regulations issued under 
chapter I--United States Fish and Wildlife Service, Department of the 
Interior. The seventh volume (parts 200-599) contains the current 
regulations issued under chapter II--National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, Department of Commerce; 
chapter III--International Fishing and Related Activities, chapter IV--
Joint Regulations (United States Fish and Wildlife Service, Department 
of the Interior and National Marine Fisheries Service, National Oceanic 
and Atmospheric Administration, Department of Commerce); Endangered 
Species Committee regulations; and chapter V--Marine Mammal Commission. 
The eighth and ninth volumes (parts 600-659 and part 660 to end) contain 
the current regulations issued under chapter VI--Fishery Conservation 
and Management, National Oceanic and Atmospheric Administration, 
Department of Commerce. The contents of these volumes represent all 
current regulations codified under this title of the CFR as of October 
1, 2009.

    Alphabetical listings of endangered and threatened wildlife and 
plants appear in Sec. Sec.  17.11 and 17.12.

    The OMB control numbers for the National Oceanic and Atmospheric 
Administration appear in 15 CFR 902.1.

    For this volume, Jonn V. Lilyea was Chief Editor. The Code of 
Federal Regulations publication program is under the direction of 
Michael L. White, assisted by Ann Worley.


[[Page 1]]



                    TITLE 50--WILDLIFE AND FISHERIES




                  (This book contains parts 200 to 599)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--National Marine Fisheries Service, National 
  Oceanic and Atmospheric Administration, Department of 
  Commerce..................................................         216

chapter iii--International Fishing and Related Activities...         300

chapter iv--Joint Regulations (United States Fish and 
  Wildlife Service, Department of the Interior and National 
  Marine Fisheries Service, National Oceanic and Atmospheric 
  Administration, Department of Commerce); Endangered 
  Species Committee Regulations.............................         401

chapter v--Marine Mammal Commission.........................         501

[[Page 3]]



  CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 
           ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE




  --------------------------------------------------------------------

               SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
       SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
                      SUBCHAPTER C--MARINE MAMMALS
Part                                                                Page
216             Regulations governing the taking and 
                    importing of marine mammals.............           5
217             Regulations governing the take of marine 
                    mammals incidental to specified 
                    activities..............................         146
218             Regulations governing the taking and 
                    importing of marine mammals.............         151
219-220         [Reserved]

221             Prescriptions in FERC hydropower licenses...         182
222             General endangered and threatened marine 
                    species.................................         201
223             Threatened marine and anadromous species....         226
224             Endangered marine and anadromous species....         309
225             [Reserved]

226             Designated critical habitat.................         317
228             Notice and hearing on section 103(d) 
                    regulations.............................         752
229             Authorization for commercial fisheries under 
                    the Marine Mammal Protection Act of 1972         758
                          SUBCHAPTER D--WHALING
230             Whaling provisions..........................         807
SUBCHAPTER E--TRANSPORTATION AND LABELING OF FISH OR WILDLIFE [RESERVED]
                     SUBCHAPTER F--AID TO FISHERIES
253             Fisheries assistance programs...............         810

[[Page 4]]

259             Capital construction fund...................         819
 SUBCHAPTER G--PROCESSED FISHERY PRODUCTS, PROCESSED PRODUCTS THEREOF, 
                AND CERTAIN OTHER PROCESSED FOOD PRODUCTS
260             Inspection and certification................         831
261             United States standards for grades..........         861
                SUBCHAPTER H--FISH AND SEAFOOD PROMOTION
270             Species-specific Seafood Marketing Councils.         863
                       SUBCHAPTERS I-J [RESERVED]
                     SUBCHAPTER K--CONTINENTAL SHELF
296             Fishermen's Contingency Fund................         875

[[Page 5]]



               SUBCHAPTER A_GENERAL PROVISIONS [RESERVED]



       SUBCHAPTER B_NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]



                       SUBCHAPTER C_MARINE MAMMALS



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

Table of Contents




                         Subpart A_Introduction

Sec.
216.1 Purpose of regulations.
216.2 Scope of regulations.
216.3 Definitions.
216.4 Other laws and regulations.
216.5 Payment of penalty.
216.6 Forfeiture and return of seized property.
216.7 Holding and bonding.
216.8 Enforcement officers.

                         Subpart B_Prohibitions

216.11 Prohibited taking.
216.12 Prohibited importation.
216.13 Prohibited uses, possession, transportation, sales, and permits.
216.14 Marine mammals taken before the MMPA.
216.15 Depleted species.
216.16 Prohibitions under the General Authorization for Level B 
          harassment for scientific research.
216.17 General prohibitions.

                      Subpart C_General Exceptions

216.21 Actions permitted by international treaty, convention, or 
          agreement.
216.22 Taking by State or local government officials.
216.23 Native exceptions.
216.24 Taking and related acts incidental to commercial fishing 
          operations by tuna purse seine vessels in the eastern tropical 
          Pacific Ocean.
216.25 Exempted marine mammals and marine mammal products.
216.26 Collection of certain marine mammal parts without prior 
          authorization.
216.27 Release, non-releasability, and disposition under special 
          exception permits for rehabilitated marine mammals.

                      Subpart D_Special Exceptions

216.30 [Reserved]
216.31 Definitions.
216.32 Scope.
216.33 Permit application submission, review, and decision procedures.
216.34 Issuance criteria.
216.35 Permit restrictions.
216.36 Permit conditions.
216.37 Marine mammal parts.
216.38 Reporting.
216.39 Permit amendments.
216.40 Penalties and permit sanctions.
216.41 Permits for scientific research and enhancement.
216.42 Photography. [Reserved]
216.43 Public display. [Reserved]
216.44 Applicability/transition.
216.45 General Authorization for Level B harassment for scientific 
          research.
216.46 U.S. citizens on foreign flag vessels operating under the 
          International Dolphin Conservation Program.
216.47 Access to marine mammal tissue, analyses, and data.
216.48-216.49 [Reserved]

                       Subpart E_Designated Ports

216.50 Importation at designated ports.

       Subpart F_Pribilof Islands, Taking for Subsistence Purposes

216.71 Allowable take of fur seals.
216.72 Restrictions on taking.
216.73 Disposition of fur seal parts.
216.74 Cooperation with Federal officials.

                Subpart G_Pribilof Islands Administration

216.81 Visits to fur seal rookeries.
216.82 Dogs prohibited.
216.83 Importation of birds or mammals.
216.84 [Reserved]
216.85 Walrus and Otter Islands.
216.86 Local regulations.
216.87 Wildlife research.

                  Subpart H_Dolphin Safe Tuna Labeling

216.90 Purposes.
216.91 Dolphin-safe labeling standards.
216.92 Dolphin-safe requirements for tuna harvested in the ETP by large 
          purse seine vessels.
216.93 Tracking and verification program.
216.94 False statements or endorsements.
216.95 Official mark for ``Dolphin-safe'' tuna products.

 Subpart I_General Regulations Governing Small Takes of Marine Mammals 
                   Incidental to Specified Activities

216.101 Purpose.

[[Page 6]]

216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of Authorization.
216.107 Incidental harassment authorization for Arctic waters.
216.108 Requirements for monitoring and reporting under incidental 
          harassment authorizations for Arctic waters.

    Subpart J_Taking Marine Mammals Incidental to Coastal Commercial 
Fireworks Displays at Monterey Bay National Marine Sanctuary, California

216.110 Specified activity and specified geographical region.
216.111 Effective dates.
216.112 Permissible methods of taking.
216.113 Prohibitions.
216.114 Mitigation.
216.115 Requirements for monitoring and reporting.
216.116 Applications for Letters of Authorization.
216.117 Letters of Authorization.
216.118 Renewal of Letters of Authorization.
216.119 Modifications to Letters of Authorization.

Subpart K_Taking Of Marine Mammals Incidental To Space Vehicle And Test 
                            Flight Activities

216.120 Specified activity and specified geographical region.
216.121 Effective dates.
216.122 Permissible methods of taking.
216.123 Prohibitions.
216.124 Mitigation.
216.125 Requirements for monitoring and reporting.
216.126 Applications for Letters of Authorization.
216.127 Letters of Authorization.
216.128 Renewal of Letters of Authorization.
216.129 Modifications of Letters of Authorization.

Subparts L-M [Reserved]

    Subpart N_Taking Of Marine Mammals Incidental To Missile Launch 
                 Activities from San Nicolas Island, CA

216.150 Specified activity and specified geographical region.
216.151 Effective dates.
216.152 Permissible methods of taking.
216.153 Prohibitions.
216.154 Mitigation.
216.155 Requirements for monitoring and reporting.
216.156 Applications for Letters of Authorization.
216.157 Letters of Authorization.
216.158 Renewal of Letters of Authorization.
216.159 Modifications of Letters of Authorization.

 Subpart O_Taking of Marine Mammals Incidental to Shock Testing the USS 
  MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the 
               Offshore Waters of the U.S. Atlantic Coast

216.161 Specified activity and incidental take levels by species.
216.162 Effective dates.
216.163 Mitigation.
216.164 Prohibitions.
216.165 Requirements for monitoring and reporting.
216.166 Modifications to the Letter of Authorization.

Subpart P_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Hawaii Range Complex (HRC)

216.170 Specified activity and specified geographical region.
216.171 Effective dates and definitions.
216.172 Permissible methods of taking.
216.173 Prohibitions.
216.174 Mitigation.
216.175 Requirements for monitoring and reporting.
216.176 Applications for Letters of Authorization.
216.177 Letters of Authorization.
216.178 Renewal of Letters of Authorization.
216.179 Modifications to Letters of Authorization.

  Subpart Q_Taking of Marine Mammals Incidental to Navy Operations of 
Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA 
                              sonar) Sonar

216.180 Specified activity.
216.181 Effective dates.
216.182 Permissible methods of taking.
216.183 Prohibitions.
216.184 Mitigation.
216.185 Requirements for monitoring.
216.186 Requirements for reporting.
216.187 Applications for Letters of Authorization.
216.188 Letters of Authorization.
216.189 Renewal of Letters of Authorization.
216.190 Modifications to Letters of Authorization.

[[Page 7]]

216.191 Designation of Offshore Biologically Important Marine Mammal 
          Areas.

   Subpart R_Taking of Marine Mammals Incidental to Construction and 
  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

216.200 Specified activity and specified geographical region.
216.201 Effective dates.
216.202 Permissible methods of taking.
216.203 Prohibitions.
216.204 Mitigation.
216.205 Measures to ensure availability of species for subsistence uses.
216.206 Requirements for monitoring and reporting.
216.207 Applications for Letters of Authorization.
216.208 Letters of Authorization.
216.209 Renewal of Letters of Authorization.
216.210 Modifications to Letters of Authorization.

Subpart S--Taking of Marine Mammals Incidental to Explosive Severance 
Activities Conducted During Offshore Structure Removal Operations on the 
Outer Continental Shelf in the U.S. Gulf of Mexico

216.211 Specified activity and specified geographical region.
216.212 Effective dates.
216.213 Permissible methods of taking.
216.214 Prohibitions.
216.215 Definitions, terms, and criteria.
216.216 Mitigation.
216.217 Requirements for monitoring and reporting.
216.218 Letters of Authorization.
216.219 Renewal and modifications of Letters of Authorization.

Subpart T [Reserved]

 Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from 
              the Kodiak Launch Complex, Kodiak Island, AK

216.230 Specified activity and specified geographical region.
216.231 Effective dates.
216.232 Permissible methods of taking.
216.233 Prohibitions.
216.234 Mitigation, monitoring and reporting.
216.235 Letter of Authorization.
216.236 Renewal of a Letter of Authorization.
216.237 Modifications to a Letter of Authorization.

  Subpart V_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 
                   Fleet Active Sonar Training (AFAST)

216.240 Specified activity and specified geographical region.
216.241 Effective dates and definitions.
216.242 Permissible methods of taking.
216.243 Prohibitions.
216.244 Mitigation.
216.245 Requirements for monitoring and reporting.
216.246 Applications for Letters of Authorization.
216.247 Letters of Authorization.
216.248 Renewal of Letters of Authorization and Adaptive Management.
216.249 Modifications to Letters of Authorization.

   Subpart W_Taking Marine Mammals Incidental to Conducting Precision 
              Strike Weapon Missions in the Gulf of Mexico

216.250 Specified activity and specified geographical region.
216.251 Effective dates.
216.252 Permissible methods of taking.
216.253 Prohibitions.
216.254 Mitigation.
216.255 Requirements for monitoring and reporting.
216.256 Applications for Letters of Authorization.
216.257 Letters of Authorization.
216.258 Renewal of Letters of Authorization.
216.259 Modifications to Letters of Authorization.

Subpart X_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                    Southern California Range Complex

216.270 Specified activity and specified geographical region.
216.271 Effective dates and definitions.
216.272 Permissible methods of taking.
216.273 Prohibitions.
216.274 Mitigation.
216.275 Requirements for monitoring and reporting.
216.276 Applications for Letters of Authorization.
216.277 Letters of Authorization.
216.278 Renewal of Letters of Authorization.
216.279 Modifications to Letters of Authorization.

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

    Source: 39 FR 1852, Jan. 15, 1974, unless otherwise noted.

[[Page 8]]

    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 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.

[[Page 9]]

    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.
    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).

[[Page 10]]

    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 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

[[Page 11]]

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.
    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

[[Page 12]]

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; 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

[[Page 13]]

    (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 on GPO Access.



Sec. 216.4  Other laws and regulations.

    (a) Federal. Nothing in this part, nor any permit issued under 
authority of this part, shall be construed to relieve a person from any 
other requirements imposed by a statute or regulation of the United 
States, including any applicable statutes or regulations relating to 
wildlife and fisheries, health, quarantine, agriculture, or customs.
    (b) State laws or regulations. See part 403 of this chapter.

[39 FR 1852, Jan. 15, 1974, as amended at 41 FR 36662, Aug. 31, 1976; 58 
FR 65134, Dec. 13, 1993]



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

[[Page 14]]

such seized property or the monetary value thereof to the Secretary for 
disposition by him in such manner as he deems appropriate. If no 
judicial action to compel forfeiture is commenced within 30 days after 
final decision-making assessment of a civil penalty, pursuant to Sec. 
216.60, such seized property shall immediately be returned to the 
respondent.
    (d) If the final decision of the Secretary under these regulations 
is that respondent has committed no violation of the MMPA or of any 
permit or regulations issued thereunder, any marine mammal, marine 
mammal product, or other cargo seized from respondent in connection with 
the proceedings under these regulations, or the bond or other monetary 
value substituted therefor, shall immediately be returned to the 
respondent.
    (e) If the Attorney General commences criminal proceedings pursuant 
to section 105(b) of the MMPA, and such proceedings result in a finding 
that the person accused is not guilty of a criminal violation of the 
MMPA, the Secretary may institute proceedings for the assessment of a 
civil penalty under this part: Provided, That if no such civil penalty 
proceedings have been commenced by the Secretary within 30 days 
following the final disposition of the criminal case, any property 
seized pursuant to section 107 of the MMPA shall be returned to the 
respondent.
    (f) If any seized property is to be returned to the respondent, the 
Regional Director shall issue a letter authorizing such return. This 
letter shall be dispatched to the respondent by registered mail, return 
receipt requested, and shall identify the respondent, the seized 
property, and, if appropriate, the bailee of the seized property. It 
shall also provide that upon presentation of the letter and proper 
identification, the seized property is authorized to be released. All 
charges for storage, care, or handling of the seized property accruing 5 
days or more after the date of the return receipt shall be for the 
account of the respondent: Provided, That if it is the final decision of 
the Secretary under these regulations that the respondent has committed 
the alleged violation, all charges which have accrued for the storage, 
care, or handling of the seized property shall be for the account of the 
respondent.

[39 FR 1852, Jan. 15, 1974. Redesignated at 46 FR 61652, Dec. 18, 1981, 
and amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.7  Holding and bonding.

    (a) Any marine mammal, marine mammal product, or other cargo seized 
pursuant to section 107 of the MMPA shall be delivered to the 
appropriate Regional Director of the National Marine Fisheries Service 
(see Sec. 201.2 of this title) or his designee, who shall either hold 
such seized property or arrange for the proper handling and care of such 
seized property.
    (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

[[Page 15]]

United States to take any marine mammal on the high seas, or
    (b) Any person, vessel, or conveyance to take any marine mammal in 
waters or on lands under the jurisdiction of the United States, or
    (c) Any person subject to the jurisdiction of the United States to 
take any marine mammal during the moratorium.

[39 FR 1852, Jan. 15, 1974, as amended at 47 FR 21254, May 18, 1982; 54 
FR 21921, May 19, 1989]



Sec. 216.12  Prohibited importation.

    (a) Except as otherwise provided in subparts C and D of this part 
216, it is unlawful for any person to import any marine mammal or marine 
mammal product into the United States.
    (b) Regardless of whether an importation is otherwise authorized 
pursuant to subparts C and D of this part 216, it is unlawful for any 
person to import into the United States any:
    (1) Marine mammal:
    (i) Taken in violation of the MMPA, or
    (ii) Taken in another country in violation to the laws of that 
country;
    (2) Any marine mammal product if
    (i) The importation into the United States of the marine mammal from 
which such product is made would be unlawful under paragraph (b)(1) of 
this section, or
    (ii) The sale in commerce of such product in the country of origin 
if the product is illegal.
    (c) Except in accordance with an exception referred to in subpart C 
and Sec. Sec. 216.31 (regarding scientific research permits only) and 
216.32 of this part 216, it is unlawful to import into the United States 
any:
    (1) Marine mammal which was pregnant at the time of taking.
    (2) Marine mammal which was nursing at the time of taking, or less 
than 8 months old, whichever occurs later.
    (3) Specimen of an endangered or threatened species of marine 
mammal.
    (4) Specimen taken from a depleted species or stock of marine 
mammals, or
    (5) Marine mammal taken in an inhumane manner.
    (d) It is unlawful to import into the United States any fish, 
whether fresh, frozen, or otherwise prepared, if such fish was caught in 
a manner proscribed by the Secretary of Commerce for persons subject to 
the jurisdiction of the United States, whether or not any marine mammals 
were in fact taken incident to the catching of the fish.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, Oct. 3, 1994]



Sec. 216.13  Prohibited uses, possession, transportation, sales, and permits.

    It is unlawful for:
    (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:

[[Page 16]]

    (1) The Affiant's name and address;
    (2) Identification of the Affiant;
    (3) A description of the marine mammals or marine mammal products 
which the Affiant desires to import;
    (4) A statement by the Affiant that, to the best of his knowledge 
and belief, the marine mammals involved in the application were taken 
prior to December 21, 1972;
    (5) A statement by the Affiant in the following language:

    The foregoing is principally based on the attached exhibits which, 
to the best of my knowledge and belief, are complete, true and correct. 
I understand that this affidavit is being submitted for the purpose of 
inducing the Federal Government to permit the importation of--under the 
Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 through 1407) and 
regulations promulgated thereunder, and that any false statements may 
subject me to the criminal penalties of 13 U.S.C. 1001, or to penalties 
under the Marine Mammal Protection Act of 1972.

    (b) Either one of two exhibits shall be attached to such affidavit, 
and will contain either:
    (1) Records or other available evidence showing that the product 
consists of or is composed in whole or in part of marine mammals taken 
prior to the effective date of the MMPA. Such records or other 
evidentiary material must include information on how, when, where, and 
by whom the animals were taken, what processing has taken place since 
taking, and the date and location of such processing; or
    (2) A statement from a government agency of the country of origin 
exercising jurisdiction over marine mammals that any and all such 
mammals from which the products sought to be imported were derived were 
taken prior to December 21, 1972.
    (c) No pre-Act marine mammal or pre-Act marine mammal product may be 
imported unless the requirements of this section have been fulfilled.
    (d) This section has no application to any marine mammal or marine 
mammal product intended to be imported pursuant to Sec. Sec. 216.21, 
216.31 or Sec. 216.32.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50375, 50376, Oct. 3, 
1994]



Sec. 216.15  Depleted species.

    The following species or population stocks have been designated by 
the Assistant Administrator as depleted under the provisions of the 
MMPA.
    (a) Hawaiian monk seal (Monachus schauinslandi).
    (b) Bowhead whale (Balaena mysticetus).
    (c) North Pacific fur seal (Callorhinus ursinus). Pribilof Island 
population.
    (d) Bottlenose dolphin (Tursiops truncatus), coastal-migratory stock 
along the U.S. mid-Atlantic coast.
    (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);

[[Page 17]]

    (b) Violate any term or condition imposed pursuant to Sec. 
216.45(d).

[59 FR 50376, Oct. 3, 1994]



Sec. 216.17  General prohibitions.

    It is unlawful for any person to:
    (a) Assault, resist, oppose, impede, intimidate, threaten, or 
interfere with any authorized officer in the conduct of any search, 
inspection, investigation or seizure in connection with enforcement of 
the MMPA, DPCIA, or IDCPA.
    (b) Interfere with, delay, or prevent by any means the apprehension 
of another person, knowing that such person has committed any act 
prohibited by the MMPA.
    (c) Resist a lawful arrest for any act prohibited under the MMPA.
    (d) Make any false statement, oral or written, to an authorized 
officer concerning any act under the jurisdiction of the MMPA, DPCIA, 
IDCPA, or attempt to do any of the above.
    (e) Interfere with, obstruct, delay, or prevent by any means an 
investigation, search, seizure, or disposition of seized property in 
connection with enforcement of the MMPA, DPCIA, or IDCPA.

[70 FR 19008, Apr. 12, 2005]



                      Subpart C_General Exceptions



Sec. 216.21  Actions permitted by international treaty, convention, or 

agreement.

    The MMPA and these regulations shall not apply to the extent that 
they are inconsistent with the provisions of any international treaty, 
convention or agreement, or any statute implementing the same relating 
to the taking or importation of marine mammals or marine mammal 
products, which was existing and in force prior to December 21, 1972, 
and to which the United States was a party. Specifically, the 
regulations in subpart B of this part and the provisions of the MMPA 
shall not apply to activities carried out pursuant to the Interim 
Convention on the Conservation of North Pacific Fur Seals signed at 
Washington on February 9, 1957, and the Fur Seal Act of 1966, 16 U.S.C. 
1151 through 1187, as in each case, from time to time amended.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994]



Sec. 216.22  Taking by State or local government officials.

    (a) A State or local government official or employee may take a 
marine mammal in the normal course of his duties as an official or 
employee, and no permit shall be required, if such taking:
    (1) Is accomplished in a humane manner;
    (2) Is for the protection or welfare of such mammal or for the 
protection of the public health or welfare; and
    (3) Includes steps designed to insure return of such mammal, if not 
killed in the course of such taking, to its natural habitat. In 
addition, any such official or employee may, incidental to such taking, 
possess and transport, but not sell or offer for sale, such mammal and 
use any port, harbor, or other place under the jurisdiction of the 
United States. All steps reasonably practicable under the circumstances 
shall be taken by any such employee or official to prevent injury or 
death to the marine mammal as the result of such taking. Where the 
marine mammal in question is injured or sick, it shall be permissible to 
place it in temporary captivity until such time as it is able to be 
returned to its natural habitat. It shall be permissible to dispose of a 
carcass of a marine mammal taken in accordance with this subsection 
whether the animal is dead at the time of taking or dies subsequent 
thereto.
    (b) Each taking permitted under this section shall be included in a 
written report to be submitted to the Secretary every six months 
beginning December 31, 1973. Unless otherwise permitted by the 
Secretary, the report shall contain a description of:
    (1) The animal involved;
    (2) The circumstances requiring the taking;
    (3) The method of taking;
    (4) The name and official position of the State official or employee 
involved;
    (5) The disposition of the animal, including in cases where the 
animal has

[[Page 18]]

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 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

[[Page 19]]

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 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

[[Page 20]]

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 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

[[Page 21]]

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 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.

[[Page 22]]

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.

                                                                      Harvest Table
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                               Expected
               5-year population averages                            ``High'' growth rate             ``Intermediate''     ``Low'' growth     Mortality
                                                                                                         growth rate            rate            Limit
--------------------------------------------------------------------------------------------------------------------------------------------------------
Less than 350...........................................                                          0                   0                   0            -
350-399.................................................                       8 strikes in 5 years      5 strikes in 5      5 strikes in 5           21
                                                                                                                  years               years
400-449.................................................                       9 strikes in 5 years      8 strikes in 5      5 strikes in 5           24
                                                                                                                  years               years
450-499.................................................                      10 strikes in 5 years      8 strikes in 5      5 strikes in 5           27
                                                                                                                  years               years
500-524.................................................                      14 strikes in 5 years      9 strikes in 5      5 strikes in 5           30
                                                                                                                  years               years
525-549.................................................                      16 strikes in 5 years     10 strikes in 5      5 strikes in 5           32
                                                                                                                  years               years
550-574.................................................                      20 strikes in 5 years     15 strikes in 5      5 strikes in 5           33
                                                                                                                  years               years
575-599.................................................                      22 strikes in 5 years     16 strikes in 5      5 strikes in 5           35
                                                                                                                  years               years
600-624.................................................                      24 strikes in 5 years     17 strikes in 5      6 strikes in 5           36
                                                                                                                  years               years
625-649.................................................                      26 strikes in 5 years     18 strikes in 5      6 strikes in 5           38
                                                                                                                  years               years

[[Page 23]]

 
650-699.................................................                      28 strikes in 5 years     19 strikes in 5      7 strikes in 5           39
                                                                                                                  years               years
700-779.................................................                      32 strikes in 5 years     20 strikes in 5      7 strikes in 5           42
                                                                                                                  years               years
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 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

[[Page 24]]

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 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.

[[Page 25]]

    (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 
licensed under the South Pacific Tuna Treaty must submit the vessel 
assessment fee, as established by the IATTC or other approved observer 
program, to the Administrator, Southwest Region, prior to obtaining an 
observer and entering the ETP to fish. Consistent with Sec. 
300.22(b)(1)(i) of this title, this class of purse seine vessels is not 
required to be listed on the Vessel Register under Sec. 300.22(b)(4) of 
this title in order to purse seine for tuna in the ETP during a single 
fishing trip per calendar year of 90 days or less. Payment of the 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.
    (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 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

[[Page 26]]

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 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

[[Page 27]]

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.
    (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

[[Page 28]]

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 
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

[[Page 29]]

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.
    (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

[[Page 30]]

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.
    (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

[[Page 31]]

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.
    (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.

[[Page 32]]

    (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 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

[[Page 33]]

this part for U.S. fishermen, or as specified at paragraph (f)(6) of 
this section.
    (ii) For purposes of this paragraph (f), and in applying the 
definition of an ``intermediary nation,'' an import occurs when the fish 
or fish product is released from a nation's Customs' custody and enters 
into the commerce of the nation. For other purposes, ``import'' is 
defined in Sec. 216.3.
    (2) Imports requiring a Fisheries Certificate of Origin. Shipments 
of tuna, tuna products, and certain other fish products identified in 
paragraphs (f)(2)(i), (f)(2)(ii), and (f)(2)(iii) of this section may 
not be imported into the United States unless a properly completed 
Fisheries Certificate of Origin (FCO), NOAA Form 370, is filed with U.S. 
Customs and Border Protection (CBP) at the time of importation.
    (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 frozen,
                                             except whole, head-on,
                                             fillets, livers and roes
  0304.29.6097............................  Tuna fish fillets, frozen,
                                             Not elsewhere specified or
                                             indicated (NESOI)
  0304.99.1090............................  Tuna, frozen, in bulk or in
                                             immediate containers
                                             weighing with their
                                             contents over 6.8 kg each,
                                             NESOI
  (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
  (D) Other: (products containing Yellowfin)............................
  1604.20.1000............................  Fish pastes
  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
 

    (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
  0303.45.0000............................  Bluefin tunas, frozen,
                                             except fillets, livers and
                                             roes
  0303.46.0000............................  Southern bluefin tunas,
                                             frozen, except fillets,
                                             livers and roes
  0303.49.0100............................  Tunas, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0304.29.6097............................  Tuna fish fillets, frozen,
                                             NESOI
  0304.99.1090............................  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

[[Page 34]]

 
  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)........................
  1604.20.1000............................  Fish pastes
  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
 

    (iii) Exports from driftnet nations only, requiring a Fisheries 
Certificate of Origin and official certification. The following HTS 
numbers identify categories of fish and shellfish, in addition to those 
identified in paragraphs (f)(2)(i) and (f)(2)(ii) of this section, known 
to have been harvested using a large-scale driftnet and imported into 
the United States. Shipments exported from a large-scale driftnet 
nation, as identified under paragraph (f)(7) of this section, and 
imported into the United States, 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:...........................................................
  0303.19.0012............................  Chinook (King) salmon
                                             (Oncorhynchus
                                             tschawytscha), frozen,
                                             except fillets, livers and
                                             roes
  0303.19.0022............................  Chum (dog) salmon
                                             (Oncorhynchus keta),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0032............................  Pink (humpie) salmon
                                             (Oncorhynchus gorbuscha),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0052............................  Coho (silver) salmon
                                             (Oncorhynchus kisutch),
                                             frozen, except fillets,
                                             livers and roes
  0303.19.0062............................  Pacific salmon (Oncorhynchus
                                             masou, Oncorhynchus
                                             rhodurus), frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0303.21.0000............................  Trout (Salmo trutta;
                                             Oncorhynchus mykiss,
                                             clarki, aguabonita, gilae,
                                             apache, and chrysogaster),
                                             frozen, except fillets,
                                             livers and roes
  0303.22.0000............................  Atlantic salmon (Salmo
                                             salar) and Danube salmon
                                             (Hucho hucho), frozen,
                                             except fillets, livers and
                                             roes
  0303.29.0000............................  Salmonidae, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0303.61.0010............................  Swordfish steaks, frozen,
                                             except fillets
  0303.61.0090............................  Swordfish, frozen, except
                                             steaks, fillets, livers and
                                             roes
  0303.75.0010............................  Dogfish (Squalus spp.),
                                             frozen, except fillets,
                                             livers and roes
  0303.75.0090............................  Sharks, frozen, except
                                             dogfish, fillets, livers
                                             and roes
  0303.79.0079............................  Fish, frozen, except
                                             fillets, livers and roes,
                                             NESOI
  0304.21.0000............................  Swordfish fillets, frozen,
                                             NESOI
  0304.29.2066............................  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
  0304.29.6006............................  Atlantic Salmonidae (Salmo
                                             salar) fillets, frozen,
                                             NESOI
  0304.29.6008............................  Salmonidae fillets, frozen,
                                             except Atlantic salmon,
                                             NESOI
  0304.29.6099............................  Fish fillets, frozen, NESOI
  0307.49.0010............................  Squid fillets, frozen
  (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
  1604.19.2000............................  Fish, NESOI, not in oil, in
                                             airtight containers
  1604.19.3000............................  Fish, NESOI, in oil, in
                                             airtight containers
  1605.90.6050............................  Loligo squid, prepared or
                                             preserved

[[Page 35]]

 
  1605.90.6055............................  Squid except Loligo,
                                             prepared or preserved
  (C) Other:............................................................
  0305.30.6080............................  Fish fillets, dried, salted
                                             or in brine, but not
                                             smoked, NESOI
  0305.41.000.............................  Pacific salmon (Oncorhynchus
                                             spp.), Atlantic salmon
                                             (Salmo salar), and Danube
                                             salmon (Hucho hucho),
                                             including fillets, smoked
  0305.49.4040............................  Fish including fillets,
                                             smoked, NESOI
  0305.59.2000............................  Shark fins, dried, whether
                                             or not salted but not
                                             smoked
  0305.59.4000............................  Fish, dried, whether or not
                                             salted but not smoked,
                                             NESOI
  0305.69.4000............................  Salmon, salted but not dried
                                             or smoked; in brine
  0305.69.5000............................  Fish in immediate containers
                                             weighing with their
                                             contents 6.8 kg or less
                                             each, salted but not dried
                                             or smoked; in brine, NESOI
  0305.69.6000............................  Fish, salted but not dried
                                             or smoked; in brine, NESOI
  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
  0307.49.0029............................  Loligo squid, frozen (except
                                             fillets), dried, salted or
                                             in brine, NESOI
  0307.49.0050............................  Squid, 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, Southwest Region, or downloaded from the Internet at 
http://swr.nmfs.noaa.gov/noaa370.htm.
    (i) A properly completed FCO and its attached certificates as 
described in Sec. 216.91(a), if applicable, must accompany the required 
CBP entry documents that are filed at the time of import.
    (ii) FCOs and associated certifications as described in Sec. 
216.91(a), if any, that accompany imported shipments of tuna must be 
submitted by the importer of record to the Tuna Tracking and 
Verification Program, Southwest Region, within 10 calendar days of the 
shipment's entry into the commerce of the United States. FCOs submitted 
via mail should be sent to the Tuna Tracking and Verification Program, 
Southwest Region, P.O. Box 32469, Long Beach, CA 90832-2469. Copies of 
the documents may be submitted electronically using a secure file 
transfer protocol (FTP) site. Importers of record interested in 
submitting FCOs and associated certifications via FTP may contact a 
representative of the Tuna Tracking and Verification Program at the 
following email address: SWRTuna.Track@noaa.gov. The Tuna Tracking and 
Verification Program will facilitate secure transfer and protection of 
certifications by assigning a separate electronic folder for each 
importer. Access to the electronic folder will require a user 
identification and password. The Tuna Tracking and Verification Program 
will assign each importer a unique user identification and password. 
Safeguarding the confidentiality of the user identification and password 
is the responsibility of the importer to whom they are assigned. Copies 
of the documents may also be submitted via mail either on compact disc 
or as hard copies. All electronic submissions, whether via FTP or on 
compact disc, must be in Portable Document Format (PDF).
    (iii) FCOs that accompany imported shipments of tuna destined for 
further processing in the United States must be endorsed at each change 
in ownership and submitted to the Administrator, Southwest Region, by 
the last endorser when all required endorsements are completed.
    (iv) Importers and exporters are required to retain their records, 
including FCOs, import or export documents, invoices, and bills of 
lading for 2 years, and such records must be made available within 30 
days of a request by the Secretary or the Administrator, Southwest 
Region.
    (4) Contents of Fisheries Certificate of Origin. An FCO, certified 
to be accurate by the exporter(s) of the accompanying shipment, must 
include the following information:
    (i) 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);

[[Page 36]]

    (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 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

[[Page 37]]

fishing using large-scale driftnets. Such determinations will be 
published in the Federal Register. A responsible government official of 
any such nation may certify to the Assistant Administrator that none of 
the nation's vessels use large-scale driftnets. Upon receipt of the 
certification, the Assistant Administrator may find, and publish such 
finding in the Federal Register, that none of that nation's vessels 
engage in fishing with large-scale driftnets.
    (8) Affirmative finding procedure for nations harvesting yellowfin 
tuna using a purse seine in the ETP. (i) The Assistant Administrator 
will determine, on an annual basis, whether to make an affirmative 
finding based upon documentary evidence provided by the government of 
the harvesting nation or by the IDCP and the IATTC, and will publish the 
finding in the Federal Register. A finding will remain valid for 1 year 
or for such other period as the Assistant Administrator may determine. 
An affirmative finding will be terminated if the Assistant Administrator 
determines that the requirements of this paragraph are no longer being 
met. Every 5 years, the government of the harvesting nation must submit 
such documentary evidence directly to the Assistant Administrator and 
request an affirmative finding. Documentary evidence must be submitted 
by the harvesting nation for the first affirmative finding application. 
The Assistant Administrator may require the submission of supporting 
documentation or other verification of statements made in connection 
with requests to allow importations. An affirmative finding applies to 
yellowfin tuna and yellowfin tuna products that were harvested by 
vessels of the nation after March 3, 1999. To make an affirmative 
finding, the Assistant Administrator must find that:
    (A) The harvesting nation participates in the IDCP and is either a 
member of the IATTC or has initiated (and within 6 months thereafter 
completed) all steps required of applicant nations, in accordance with 
article V, paragraph 3, of the Convention establishing the IATTC, to 
become a member of that organization;
    (B) The nation is meeting its obligations under the IDCP and its 
obligations of membership in the IATTC, including all financial 
obligations;
    (C)(1) The annual total dolphin mortality of the nation's purse 
seine fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the mortality 
limits assigned by the IDCP for that nation's purse seine vessels for 
the year preceding the year in which the finding would start; or
    (2)(i) Because of extraordinary circumstances beyond the control of 
the nation and the vessel captains, the total dolphin mortality of the 
nation's purse seine fleet (including certified charter vessels 
operating under its jurisdiction) exceeded the aggregated total of the 
mortality limits assigned by the IDCP for that nation's purse seine 
vessels; and
    (ii) Immediately after the national authorities discovered the 
aggregate mortality of its fleet had been exceeded, the nation required 
all its vessels to cease fishing for tuna in association with dolphins 
for the remainder of the calendar year; and
    (D)(1) In any years in which the parties agree to a global 
allocation system for per-stock per-year individual stock quotas, the 
nation responded to the notification from the IATTC that an individual 
stock quota had been reached by prohibiting any additional sets on the 
stock for which the quota had been reached;
    (2) If a per-stock per-year quota is allocated to each nation, the 
annual per-stock per-year dolphin mortality of the nation's purse seine 
fleet (including certified charter vessels operating under its 
jurisdiction) did not exceed the aggregated total of the per-stock per-
year limits assigned by the IDCP for that nation's purse seine vessels 
(if 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

[[Page 38]]

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 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

[[Page 39]]

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 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]



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

[[Page 40]]

mammals or marine mammal products unlawful.

[39 FR 1852, Jan. 15, 1974, as amended at 56 FR 43888, Sept. 5, 1991; 59 
FR 50376, Oct. 3, 1994]



Sec. 216.26  Collection of certain marine mammal parts without prior 

authorization.

    Notwithstanding any other provision of this subpart:
    (a) Any bones, teeth or ivory of any dead marine mammal may be 
collected from a beach or from land within\1/4\ of a mile of the ocean. 
The term ocean includes bays and estuaries.
    (b) Notwithstanding the provisions of subpart D, soft parts that are 
sloughed, excreted, or discharged naturally by a living marine mammal in 
the wild may be collected or imported for bona fide scientific research 
and enhancement, provided that collection does not involve the taking of 
a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under paragraph 
(b) of this section must be registered and identified, and may be 
transferred or otherwise possessed, in accordance with Sec. 216.22(c). 
In registering a marine mammal part collected or imported under 
paragraph (b) of this section, the person who collected or imported the 
part must also state the scientific research or enhancement purpose for 
which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur if consistent with the 
provisions at Sec. 216.37(d) under subpart D.

[39 FR 1852, Jan. 15, 1974, as amended at 59 FR 50376, Oct. 3, 1994; 61 
FR 21933, May 10, 1996]



Sec. 216.27  Release, non-releasability, and disposition under special 

exception permits for rehabilitated marine mammals.

    (a) Release requirements. (1) Any marine mammal held for 
rehabilitation must be released within six months of capture or import 
unless the attending veterinarian determines that:
    (i) The marine mammal might adversely affect marine mammals in the 
wild;
    (ii) Release of the marine mammal to the wild will not likely be 
successful given the physical condition and behavior of the marine 
mammal; or
    (iii) More time is needed to determine whether the release of the 
marine mammal to the wild will likely be successful. Releasability must 
be reevaluated at intervals of no less than six months until 24 months 
from capture or import, at which time there will be a rebuttable 
presumption that release into the wild is not feasible.
    (2) The custodian of the rehabilitated marine mammal shall provide 
written notification prior to any release into the wild.
    (i) Notification shall be provided to:
    (A) The NMFS Regional Director at least 15 days in advance of 
releasing any beached or stranded marine mammal, unless advance notice 
is waived in writing by the Regional Director; or
    (B) The Office Director at least 30 days in advance of releasing any 
imported marine mammal.
    (ii) Notification shall include the following:
    (A) A description of the marine mammal, including its physical 
condition and estimated age;
    (B) The date and location of release; and
    (C) The method and duration of transport prior to release.
    (3) The Regional Director, or the Office Director as appropriate, 
may:
    (i) Require additional information prior to any release;
    (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.

[[Page 41]]

    (5) All marine mammals released must be tagged or marked in a manner 
acceptable to the Regional Director or the Office Director. The tag 
number or description of the marking must be reported to the Regional 
Director or Office Director following release.
    (b) Non-releasability and postponed determinations. (1) The 
attending veterinarian shall provide the Regional Director or Office 
Director with a written report setting forth the basis of any 
determination under paragraphs (a)(1)(i) through (iii) of this section.
    (2) Upon receipt of a report under paragraph (b)(1) of this section, 
the Regional Director or Office Director, in their sole discretion, may:
    (i) Order the release of the marine mammal;
    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (3) No later than 30 days after a marine mammal is determined 
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of 
this section, the person with authorized custody must:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (4) Notwithstanding any of the provisions of this section, the 
Office Director may require use of a rehabilitated marine mammal for any 
activity authorized under subpart D in lieu of animals taken from the 
wild.
    (5) Any rehabilitated beached or stranded marine mammal placed on 
public display following a non-releasability determination under 
paragraph (a)(1) of this section and pending disposition under paragraph 
(c) of this section, or any marine mammal imported for medical treatment 
otherwise unavailable and placed on public display pending disposition 
after such medical treatment is concluded, must be held in captive 
maintenance consistent with all requirements for public display.
    (c) Disposition for a special exception purpose. (1) Upon receipt of 
an authorization request made under paragraph (b)(3)(i) of this section, 
or release notification under (a)(2), the Office Director may authorize 
the retention or transfer of custody of the marine mammal for a special 
exception purpose authorized under subpart D.
    (2) The Office Director will first consider requests from a person 
authorized to hold the marine mammal for rehabilitation. The Office 
Director may authorize such person to retain or transfer custody of the 
marine mammal for scientific research, enhancement, or public display 
purposes.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (i) Documentation has been submitted to the Office Director that the 
person retaining the subject animal or the person receiving custody of 
the subject animal by transfer, hereinafter referred to as the 
recipient, complies with public display requirements of 16 U.S.C. 
1374(c)(2)(A) or, for purposes of scientific research and enhancement, 
holds an applicable permit, or an application for such a special 
exception permit under Sec. 216.33 or a request for a major amendment 
under Sec. 216.39 has been submitted to the Office Director and has 
been found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure 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

[[Page 42]]

transferor for any and all costs associated with the rehabilitation and 
transport of the marine mammal.
    (5) Marine mammals undergoing rehabilitation or pending disposition 
under this section shall not be subject to public display, unless such 
activities are specifically authorized by the Regional Director or the 
Office Director, and conducted consistent with the requirements 
applicable to public display. Such marine mammals shall not be trained 
for performance or be included in any aspect of a program involving 
interaction with the public; and
    (6) Marine mammals undergoing rehabilitation shall not be subject to 
intrusive research, unless such activities are specifically authorized 
by the Office Director in consultation with the Marine Mammal Commission 
and its Committee of Scientific Advisors on Marine Mammals, and are 
conducted pursuant to a scientific research permit.
    (d) Reporting. In addition to the report required under Sec. 
216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director or 
Office Director.

[61 FR 21933, May 10, 1996]



                      Subpart D_Special Exceptions



Sec. 216.30  [Reserved]



Sec. 216.31  Definitions.

    For the purpose of this subpart, the definitions set forth in 50 CFR 
part 217 shall apply to all threatened and endangered marine mammals, 
unless a more restrictive definition exists under the MMPA or part 216.

[61 FR 21935, May 10, 1996]



Sec. 216.32  Scope.

    The regulations of this subpart apply to:
    (a) All marine mammals and marine mammal parts taken or born in 
captivity after December 20, 1972; and
    (b) All marine mammals and marine mammal parts that are listed as 
threatened or endangered under the ESA.

[61 FR 21935, May 10, 1996]



Sec. 216.33  Permit application submission, review, and decision procedures.

    (a) Application submission. Persons seeking a special exemption 
permit under this subpart must submit an application to the Office 
Director. The application must be signed by the applicant, and provide 
in a properly formatted manner all information necessary to process the 
application. Written instructions addressing information requirements 
and formatting may be obtained from the Office Director upon request.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (1) Be submitted through the Convention on International Trade in 
Endangered Fauna and Flora management authority of the foreign 
government or, if different, the appropriate agency or agencies of the 
foreign government that exercises oversight over marine mammals.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (ii) The laws and regulations of the foreign governmentinvolved 
allow enforcement of the terms and conditions of the permit, and that 
the foreign government will enforce all terms and conditions; and
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.
    (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.

[[Page 43]]

    (iii) If the proposed activity is for enhancement purposes, whether 
the species or stock identified in the application is in need of 
enhancement for its survival or recovery and whether the proposed 
activity will likely succeed in its objectives.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as described 
in Sec. 216.35 and Sec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (A) To make an initial determination under the National 
Environmental Policy Act (NEPA) as to whether the proposed activity is 
categorically excluded from preparation of further environmental 
documentation, or whether the preparation of an environmental assessment 
(EA) or environmental impact statement (EIS) is appropriate or 
necessary; and
    (B) To prepare an EA or EIS if an initial determination is made by 
the Office Director that the activity proposed is not categorically 
excluded from such requirements.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (4) Incomplete applications will be returned with explanation. If 
the applicant fails to resubmit a complete application or correct the 
identified deficiencies within 60 days, the application will be deemed 
withdrawn. Applications that propose activities inconsistent with this 
subpart will be returned with explanation, and will not be considered 
further.
    (d) Notice of receipt and application review. (1) Upon receipt of a 
valid, complete application, and the preparation of any NEPA 
documentation that has been determined initially to be required, the 
Office Director will publish a notice of receipt in the Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (D) The location(s) in which the marine mammals will be taken, from 
which they will be imported, or to which they will be exported; and
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (iv) Include a NEPA statement that an initial determination has been 
made that the activity proposed is categorically excluded from the 
requirement to prepare an EA or EIS, that an EA was prepared resulting 
in a finding of no significant impact, or that a final EIS has been 
prepared and is available for review.
    (2) The Office Director will forward a copy of the complete 
application to the Commission for comment. If no comments are received 
within 45 days (or such longer time as the Office Director may 
establish) the Office Director will consider the Commission to have no 
objection to issuing a permit.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (5) If the Office Director deems it advisable, the Office Director 
may hold a public hearing within 60 days of publication of the notice of 
receipt in the Federal Register. Notice of the date, time, and place of 
the public hearing 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.

[[Page 44]]

Notice of the extension must be published in the Federal Register within 
60 days of publication of the notice of receipt in the Federal Register.
    (7) If, after publishing a notice of receipt, the Office Director 
determines on the basis of new information that an EA or EIS must be 
prepared, the Office Director must deny the permit unless an EA is 
prepared with a finding of no significant impact. If a permit is denied 
under these circumstances the application may be resubmitted with 
information sufficient to prepare an EA or EIS, and will be processed as 
a new application.
    (e) Issuance or denial procedures. (1) Within 30 days of the close 
of the public hearing or, if no public hearing is held, within 30 days 
of the close of the public comment period, the Office Director will 
issue or deny a special exception permit.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set forth 
at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (3) If the permit is issued, upon receipt, the holder must date and 
sign the permit, and return a copy of the original to the Office 
Director. The permit shall be effective upon the permit holder's signing 
of the permit. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and
    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be published 
in the Federal Register within 10 days after the date of permit issuance 
or denial and shall indicate where copies of the permit, if issued, may 
be reviewed or obtained. If the permit issued involves marine mammals 
listed as endangered or threatened under the ESA, the notice shall 
include a finding by the Office Director that the permit:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (6) Under the MMPA, the Office Director may issue a permit for 
scientific research before the end of the public comment period if 
delaying issuance could result in injury to a species, stock, or 
individual, or in loss of unique research opportunities. The Office 
Director also may waive the 30-day comment period required under the ESA 
in an emergency situation where the health or life of an endangered or 
threatened marine mammal is threatened and no reasonable alternative is 
available. If a permit is issued under these circumstances, notice of 
such issuance before the end of the comment period shall be published in 
the Federal Register within 10 days of issuance.
    (7) The applicant or any party opposed to a permit may seek judicial 
review of the terms and conditions of such permit or of a decision to 
deny such permit. Review may be obtained by filing a petition for review 
with the appropriate U.S. District Court as provided for by law.

[61 FR 21935, May 10, 1996]



Sec. 216.34  Issuance criteria.

    (a) For the Office Director to issue any permit under this subpart, 
the applicant must demonstrate that:
    (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;

[[Page 45]]

    (3) The proposed activity, if it involves endangered or threatened 
marine mammals, will be conducted consistent with the purposes and 
policies set forth in section 2 of the ESA;
    (4) The proposed activity by itself or in combination with other 
activities, will not likely have a significant adverse impact on the 
species or stock;
    (5) Whether the applicant's expertise, facilities, and resources are 
adequate to accomplish successfully the objectives and activities stated 
in the application;
    (6) If a live animal will be held captive or transported, the 
applicant's qualifications, facilities, and resources are adequate for 
the proper care and maintenance of the marine mammal; and
    (7) Any requested import or export will not likely result in the 
taking of marine mammals or marine mammal parts beyond those authorized 
by the permit.
    (b) The opinions or views of scientists or other persons or 
organizations knowledgeable of the marine mammals that are the subject 
of the application or of other matters germane to the application will 
be considered.

[61 FR 21936, May 10, 1996]



Sec. 216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (b) The maximum period of any special exception permit issued, or 
any major amendment granted, is five years from the effective date of 
the permit or major amendment. In accordance with the provisions of 
Sec. 216.39, the period of a permit may be extended by a minor 
amendment up to 12 months beyond that established in the original 
permit.
    (c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals 
or marine mammal parts imported under the authority of a permit must be 
taken or imported in a humane manner, and in compliance with the Acts 
and any applicable foreign law. Importation of marine mammals and marine 
mammal parts is subject to the provisions of 50 CFR part 14.
    (d) The permit holder shall not take from the wild any marine mammal 
which at the time of taking is either unweaned or less than eight months 
old, or is a part of a mother-calf/pup pair, unless such take is 
specifically authorized in the conditions of the special exception 
permit. Additionally, the permit holder shall not import any marine 
mammal that is pregnant or lactating at the time of taking or import, or 
is unweaned or less than eight months old unless such import is 
specifically authorized in the conditions of the special exception 
permit.
    (e) Captive marine mammals shall not be released into the wild 
unless specifically authorized by the Office Director under a scientific 
research or enhancement permit.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (g) Individuals conducting activities authorized under the permit 
must possess qualifications commensurate with their duties and 
responsibilities, or must be under the direct supervision of a person 
with such qualifications;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (i) Special exception permits are not transferable or assignable to 
any other person, and a permit holder may not require any direct or 
indirect compensation from another person in return for requesting 
authorization for such person to conduct the taking, import, or export 
activities authorized under the subject permit;
    (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

[[Page 46]]

parts are placed for purposes of transit, supervision, or care. For 
marine mammals held captive and marine mammal parts in storage, a copy 
of the permit shall be kept on file in the holding or storage facility.

[61 FR 21936, May 10, 1996]



Sec. 216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart shall 
contain specific terms and conditions deemed appropriate by the Office 
Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, or to which they may be exported, as 
applicable, and, for endangered or threatened marine mammal species to 
be imported or exported, the port of entry or export;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. In addition to the specific conditions imposed 
pursuant to paragraph (a) of this section, the Office Director shall 
specify any other permit conditions deemed appropriate.

[61 FR 21937, May 10, 1996]



Sec. 216.37  Marine mammal parts.

    With respect to marine mammal parts acquired by take or import 
authorized under a permit issued under this subpart:
    (a) Marine mammal parts are transferrable if:
    (1) The person transferring the part receives no remuneration of any 
kind for the marine mammal part;
    (2) The person receiving the marine mammal part is:
    (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any 
other governmental agency with conservation and management 
responsibilities, who receives the part in the course of their official 
duties;
    (ii) A holder of a special exception permit which authorizes the 
take, import, or other activity involving the possession of a marine 
mammal part of the same species as the subject part; or
    (iii) In the case of marine mammal parts from a species that is not 
depleted, endangered or threatened, a person who is authorized under 
section 112(c) of the MMPA and subpart C of this part to take or import 
marine mammals or marine mammal parts;
    (iv) Any other person specifically authorized by the Regional 
Director, consistent with the requirements of paragraphs (a)(1) and 
(a)(3) through (6) of this section.
    (3) The marine mammal part is transferred for the purpose of 
scientific research, maintenance in a properly curated, professionally 
accredited scientific collection, or education, provided that, for 
transfers for educational purposes, the recipient is a museum, 
educational institution or equivalent that will ensure that the part is 
available to the public as part of an educational program;
    (4) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal part or container;
    (5) The person receiving the marine mammal part agrees that, as a 
condition of receipt, subsequent transfers may only occur subject to the 
provisions of paragraph (a) of this section; and
    (6) Within 30 days after the transfer, the person transferring the 
marine mammal part notifies the Regional Director of the transfer, 
including a description of the part, the person to whom the part was 
transferred, the purpose of the transfer, certification that the 
recipient has agreed to comply with the requirements of paragraph (a) of 
this section for subsequent transfers, 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

[[Page 47]]

    (2) The loan is for not more than one year. Loans for a period 
greater than 12 months, including loan extensions or renewals, require 
notification of the Regional Director under paragraph (a)(6).
    (c) Unless other disposition is specified in the permit, a holder of 
a special exception permit may retain marine mammal parts not destroyed 
or otherwise disposed of during or after a scientific research or 
enhancement activity, if such marine mammal parts are:
    (1) Maintained as part of a properly curated, professionally 
accredited collection; or
    (2) Made available for purposes of scientific research or 
enhancement at the request of the Office Director.
    (d) Marine mammal parts may be exported and subsequently reimported 
by a permit holder or subsequent authorized recipient, for the purpose 
of scientific research, maintenance in a properly curated, 
professionally accredited scientific collection, or education, provided 
that:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (4) If exported or reimported for educational purposes, the 
recipient is a museum, educational institution, or equivalent that will 
ensure that the part is available to the public as part of an 
educational program; and
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director under Sec. 216.38.

[61 FR 21937, May 10, 1996]



Sec. 216.38  Reporting.

    All permit holders must submit annual, final, and special reports in 
accordance with the requirements established in the permit, and any 
reporting format established by the Office Director.

[61 FR 21937, May 10, 1996]



Sec. 216.39  Permit amendments.

    (a) General. Special exception permits may be amended by the Office 
Director. Major and minor amendments may be made to permits in response 
to, or independent of, a request from the permit holder. Amendments must 
be consistent with the Acts and comply with the applicable provisions of 
this subpart.
    (1) A major amendment means any change to the permit specific 
conditions under Sec. 216.36(a) regarding:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which these marine mammals may be taken, 
imported, exported, or otherwise affected, if the proposed change may 
result in an increased level of take or risk of adverse impact;
    (iii) The location(s) in which the marine mammals may be taken, from 
which they may be imported, and to which they may be exported, as 
applicable; and
    (iv) The duration of the permit, if the proposed extension would 
extend the duration of the permit more than 12 months beyond that 
established in the original permit.
    (2) A minor amendment means any amendment that does not constitute a 
major amendment.
    (b) Amendment requests and proposals. (1) Requests by a permit 
holder for an amendment must be submitted in writing and include the 
following:
    (i) The purpose and nature of the amendment;
    (ii) Information, not previously submitted as part of the permit 
application or subsequent reports, necessary to determine whether the 
amendment satisfies all issuance criteria set forth at Sec. 216.34, 
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
    (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

[[Page 48]]

Sec. 216.33(d) and (e) governing notice of receipt, review and decision 
shall apply to all proposed major amendments.
    (2) Minor amendments. (i) After reviewing all appropriate 
information, the Office Director will provide the permit holder with 
written notice of the decision on a proposed or requested amendment, 
together with an explanation for the decision.
    (ii) If the minor amendment extends the duration of the permit 12 
months or less from that established in the original permit, notice of 
the minor amendment will be published in the Federal Register within 10 
days from the date of the Office Director's decision.
    (iii) A minor amendment will be effective upon a final decision by 
the Office Director.

[61 FR 21937, May 10, 1996]



Sec. 216.40  Penalties and permit sanctions.

    (a) Any person who violates any provision of this subpart or permit 
issued thereunder is subject to civil and criminal penalties, permit 
sanctions and forfeiture as authorized under the Acts, and 15 CFR part 
904.
    (b) All special exception permits are subject to suspension, 
revocation, modification and denial in accordance with the provisions of 
subpart D of 15 CFR part 904.

[61 FR 21938, May 10, 1996]



Sec. 216.41  Permits for scientific research and enhancement.

    In addition to the requirements under Sec. Sec. 216.33 through 
216.38, permits for scientific research and enhancement are governed by 
the following requirements:
    (a) Applicant. (1) For each application submitted under this 
section, the applicant shall be the principal investigator responsible 
for the overall research or enhancement activity. If the research or 
enhancement activity will involve a periodic change in the principal 
investigator or is otherwise controlled by and dependent upon another 
entity, the applicant may be the institution, governmental entity, or 
corporation responsible for supervision of the principal investigator.
    (2) For any scientific research involving captive maintenance, the 
application must include supporting documentation from the person 
responsible for the facility or other temporary enclosure.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not feasible; 
and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office Director.
    (4) The proposed research will not likely have significant adverse 
effects on any other component of the marine ecosystem of which the 
affected species or stock is a part.
    (5) For species or stocks designated or proposed to be designated as 
depleted, or listed or proposed to be listed as endangered or 
threatened:
    (i) The proposed research cannot be accomplished using a species or 
stock that is not designated or proposed to be designated as depleted, 
or listed or proposed to be listed as threatened or endangered;
    (ii) The proposed research, by itself or in combination with other 
activities will not likely have a long-term direct or indirect adverse 
impact on the species or stock;
    (iii) The proposed research will either:
    (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

[[Page 49]]

of the species or stock, or to identifying, evaluating, or resolving 
conservation problems for the species or stock; or
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (i) Only living marine mammals and marine mammal parts necessary for 
enhancement of the survival, recovery, or propagation of the affected 
species or stock may be taken, imported, exported, or otherwise affected 
under the authority of an enhancement permit. Marine mammal parts would 
include in this regard clinical specimens or other biological samples 
required for the conduct of breeding programs or the diagnosis or 
treatment of disease.
    (ii) The activity will likely contribute significantly to 
maintaining or increasing distribution or abundance, enhancing the 
health or welfare of the species or stock, or ensuring the survival or 
recovery of the affected species or stock in the wild.
    (iii) The activity is consistent with:
    (A) An approved conservation plan developed under section 115(b) of 
the MMPA or recovery plan developed under section 4(f) of the ESA for 
the species or stock; or
    (B) If there is no conservation or recovery plan, with the Office 
Director's evaluation of the actions required to enhance the survival or 
recovery of the species or stock in light of the factors that would be 
addressed in a conservation or recovery plan.
    (iv) An enhancement permit may authorize the captive maintenance of 
a marine mammal from a threatened, endangered, or depleted species or 
stock only if the Office Director determines that:
    (A) The proposed captive maintenance will likely contribute directly 
to the survival or recovery of the species or stock by maintaining a 
viable gene pool, increasing productivity, providing necessary 
biological information, or establishing animal reserves required to 
support directly these objectives; and
    (B) The expected benefit to the species or stock outweighs the 
expected benefits of alternatives that do not require removal of marine 
mammals from the wild.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of the 
survival or recovery objectives;
    (C) The marine mammals will be held consistent with all requirements 
and standards that are applicable to marine mammals held under the 
authority of the Acts and the Animal Welfare Act, unless the Office 
Director determines that an exception is necessary to implement an 
essential enhancement activity; and
    (D) The marine mammals will be excluded from any interactive program 
and will not be trained for performance.
    (vi) The Office Director may authorize non-intrusive scientific 
research to be conducted while a marine mammal is held under the 
authority of an enhancement permit, only if such scientific research:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made available 
to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of 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

[[Page 50]]

personnel for persons described in paragraph (c)(1)(iv)(A).
    (v) Any marine mammal part imported under the authority of a 
scientific research permit must not have been obtained as the result of 
a lethal taking that would be inconsistent with the Acts, unless 
authorized by the Office Director.
    (vi) Marine mammals held under a permit for scientific research 
shall not be placed on public display, included in an interactive 
program or activity, or trained for performance unless such activities:
    (A) Are necessary to address scientific research objectives and have 
been specifically authorized by the Office Director under the scientific 
research permit; and
    (B) Are conducted incidental to and do not in any way interfere with 
the permitted scientific research; and
    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized scientific 
research activity must not involve any taking of marine mammals beyond 
what is necessary to conduct the research (i.e., educational and 
commercial photography).
    (2) Any marine mammal or progeny held in captive maintenance under 
an enhancement permit shall be returned to its natural habitat as soon 
as feasible, consistent with the terms of the enhancement permit and the 
objectives of an approved conservation or recovery plan. In accordance 
with section 10(j) of the ESA, the Office Director may authorize the 
release of any population of an endangered or threatened species outside 
the current range of such species if the Office Director determines that 
such release will further the conservation of such species.

[61 FR 21938, May 10, 1996]



Sec. 216.42  Photography. [Reserved]



Sec. 216.43  Public display. [Reserved]



Sec. 216.44  Applicability/transition.

    (a) General. The regulations of this subpart are applicable to all 
persons, including persons holding permits or other authorizing 
documents issued before June 10, 1996, by NMFS for the take, import, 
export, or conduct of any otherwise prohibited activity involving a 
marine mammal or marine mammal part for special exception purposes.
    (b) Scientific research. Any intrusive research as defined in Sec. 
216.3, initiated after June 10, 1996, must be authorized under a 
scientific research permit. Intrusive research authorized by the Office 
Director to be conducted on captive marine mammals held for public 
display purposes prior to June 10, 1996, must be authorized under a 
scientific research permit one year after June 10, 1996.

[61 FR 21939, May 10, 1996]



Sec. 216.45  General Authorization for Level B harassment for scientific 

research.

    (a) General Authorization. (1) Persons are authorized under section 
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B 
harassment, as defined in Sec. 216.3, for purposes of bona fide 
scientific research Provided, That:
    (i) They submit a letter of intent in accordance with the 
requirements of paragraph (b) of this section, receive confirmation that 
the General Authorization applies in accordance with paragraph (c) of 
this section, and comply with the terms and conditions of paragraph (d) 
of this section; or
    (ii) If such marine mammals are listed as endangered or threatened 
under the ESA, they have been issued a permit under Section 10(a)(1)(A) 
of the ESA and implementing regulations at 50 CFR parts 217-227, 
particularly at Sec. 222.23 through Sec. 222.28, to take marine 
mammals in the wild for the purpose of scientific research, the taking 
authorized under the permit involves such 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

[[Page 51]]

threatened under the ESA may be taken for purposes of scientific 
research only after issuance of a permit for such activities pursuant to 
the ESA.
    (3) The following types of research activities will likely qualify 
for inclusion under the General Authorization: Photo-identification 
studies, behavioral observations, and vessel and aerial population 
surveys (except aerial surveys over pinniped rookeries at altitudes of 
less than 1,000 ft).
    (b) Letter of intent. Except as provided under paragraph (a)(1)(ii) 
of this section, any person intending to take marine mammals in the wild 
by Level B harassment for purposes of bona fide scientific research 
under the General Authorization must submit, at least 60 days before 
commencement of such research, a letter of intent by certified return/
receipt mail to the Chief, Permits Division, F/PR1, Office of Protected 
Resources, NMFS, 1335 East-West Highway, Silver Spring, MD 20910-3226.
    (1) The letter of intent must be submitted by the principal 
investigator (who shall be deemed the applicant). For purposes of this 
section, the principal investigator is the individual who is responsible 
for the overall research project, or the institution, governmental 
entity, or corporation responsible for supervision of the principal 
investigator.
    (2) The letter of intent must include the following information:
    (i) The name, address, telephone number, qualifications and 
experience of the applicant and any co-investigator(s) to be conducting 
the proposed research, and a curriculum vitae for each, including a list 
of publications by each such investigator relevant to the objectives, 
methodology, or other aspects of the proposed research;
    (ii) The species or stocks of marine mammals (common and scientific 
names) that are the subject of the scientific research and any other 
species or stock of marine mammals that may be harassed during the 
conduct of the research;
    (iii) The geographic location(s) in which the research is to be 
conducted, e.g., geographic name or lat./long.;
    (iv) The period(s) of time over which the research will be conducted 
(up to five years), including the field season(s) for the research, if 
applicable;
    (v) The purpose of the research, including a description of how the 
proposed research qualifies as bona fide research as defined in Sec. 
216.3; and
    (vi) The methods to be used to conduct the research.
    (3) The letter of intent must be signed, dated, and certified by the 
applicant as follows:

    In accordance with section 104(c)(3)(C) of the Marine Mammal 
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and 
implementing regulations (50 CFR part 216), I hereby notify the National 
Marine Fisheries Service of my intent to conduct research involving only 
Level B harassment on marine mammals in the wild, and request 
confirmation that the General Authorization for Level B Harassment for 
Scientific Research applies to the proposed research as described 
herein. I certify that the information in this letter of intent is 
complete, true, and correct to the best of my knowledge and belief, and 
I understand that any false statement may subject me to the criminal 
penalties of 18 U.S.C. 1001, or penalties under the MMPA and 
implementing regulations. I acknowledge and accept that authority to 
conduct scientific research on marine mammals in the wild under the 
General Authorization is a limited conditional authority restricted to 
Level B harassment only, and that any other take of marine mammals, 
including the conduct of any activity that has the potential to injure 
marine mammals (i.e., Level A harassment), may subject me to penalties 
under the MMPA and implementing regulations.

    (c) Confirmation that the General Authorization applies or 
notification of permit requirement. (1) Not later than 30 days after 
receipt of a letter of intent as described in paragraph (b) of this 
section, the Chief, Permits Division, NMFS will issue a letter to the 
applicant either:
    (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

[[Page 52]]

involving other than Level B harassment and, as a result, cannot be 
conducted under the General Authorization, and that a scientific 
research permit is required to conduct all or part of the subject 
research; or
    (iii) Notifying the applicant that the letter of intent fails to 
provide sufficient information and providing a description of the 
deficiencies, or notifying the applicant that the proposed research as 
described in the letter of intent is not bona fide research as defined 
in Sec. 216.3.
    (2) A copy of each letter of intent and letter confirming that the 
General Authorization applies or notifying the applicant that it does 
not apply will be forwarded to the Marine Mammal Commission.
    (3) Periodically, NMFS will publish a summary document in the 
Federal Register notifying the public of letters of confirmation issued.
    (d) Terms and conditions. Persons issued letters of confirmation in 
accordance with paragraph (c) of this section are responsible for 
complying with the following terms and conditions:
    (1) Activities are limited to those conducted for the purposes, by 
the means, in the locations, and during the periods of time described in 
the letter of intent and acknowledged as authorized under the General 
Authorization in the confirmation letter sent pursuant to paragraph (c) 
of this section;
    (2) Annual reports of activities conducted under the General 
Authorization must be submitted to the Chief, Permits Division (address 
listed in paragraph (b) of this section) within 90 days of completion of 
the last field season(s) during the calendar year or, if the research is 
not conducted during a defined field season, no later than 90 days after 
the anniversary date of the letter of confirmation issued under 
paragraph (c) of this section. Annual reports must include:
    (i) A summary of research activities conducted;
    (ii) Identification of the species and number of each species taken 
by Level B harassment;
    (iii) An evaluation of the progress made in meeting the objectives 
of the research as described in the letter of intent; and
    (iv) Any incidental scientific, educational, or commercial uses of 
photographs, videotape, and film obtained as a result of or incidental 
to the research and if so, names of all photographers.
    (3) Authorization to conduct research under the General 
Authorization is for the period(s) of time identified in the letter of 
intent or for a period of 5 years from the date of the letter of 
confirmation issued under paragraph (c) of this section, whichever is 
less, unless extended by the Director or modified, suspended, or revoked 
in accordance with paragraph (e) of this section;
    (4) Activities conducted under the General Authorization may only be 
conducted under the on-site supervision of the principal investigator or 
co-investigator(s) named in the letter of intent. All personnel involved 
in the conduct of activities under the General Authorization must 
perform a function directly supportive of and necessary for the research 
being conducted, or be one of a reasonable number of support personnel 
included for the purpose of training or as back-up personnel;
    (5) The principal investigator must notify the appropriate Regional 
Director, NMFS, (Regional Director) in writing at least 2 weeks before 
initiation of on-site activities. The Regional Director shall consider 
this information in efforts to coordinate field research activities to 
minimize adverse impacts on marine mammals in the wild. The principal 
investigator must cooperate with coordination efforts by the Regional 
Director in this regard;
    (6) If research activities result in a taking which exceeds Level B 
harassment, the applicant shall:
    (i) Report the taking within 12 hours to the Director, Office of 
Protected Resources, or his designee as set forth in the letter 
authorizing research; and
    (ii) Temporarily discontinue for 72 hours all field research 
activities that 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.

[[Page 53]]

    (7) NMFS may review scientific research conducted pursuant to the 
General Authorization. If requested by NMFS, the applicant must 
cooperate with any such review and shall:
    (i) Allow any employee of NOAA or any other person designated by the 
Director, Office of Protected Resources to observe research activities; 
and
    (ii) Provide any documents or other information relating to the 
scientific research;
    (8) Any photographs, videotape, or film obtained during the conduct 
of research under the General Authorization must be identified by a 
statement that refers to the General Authorization or ESA permit number, 
and includes the file number provided by NMFS in the confirmation 
letter, the name of the photographer, and the date the image was taken. 
This statement must accompany the image(s) in all subsequent uses or 
sales. The annual report must note incidental scientific, educational, 
or commercial uses of the images, and if there are any such uses, the 
names of all photographers; and
    (9) Persons conducting scientific research under authority of the 
General Authorization may not transfer or assign any authority granted 
thereunder to any other person.
    (e) Suspension, revocation, or modification. (1) NMFS may suspend, 
revoke, or modify the authority to conduct scientific research under the 
General Authorization if:
    (i) The letter of intent included false information or statements of 
a material nature;
    (ii) The research does not constitute bona fide scientific research;
    (iii) Research activities result in takings of marine mammals other 
than by Level B harassment;
    (iv) Research activities differ from those described in the letter 
of intent submitted by the applicant and letter of confirmation issued 
by NMFS; or
    (v) The applicant violates any term or condition set forth in this 
section.
    (2) Any suspension, revocation, or modification is subject to the 
requirements of 15 CFR part 904.

[59 FR 50376, Oct. 3, 1994]



Sec. 216.46  U.S. citizens on foreign flag vessels operating under the 

International Dolphin Conservation Program.

    The MMPA's provisions do not apply to a citizen of the United States 
who incidentally takes any marine mammal during fishing operations in 
the ETP which are outside the U.S. exclusive economic zone (as defined 
in section 3 of the Magnuson-Stevens Fishery Conservation and Management 
Act (16 U.S.C. 1802)), while employed on a fishing vessel of a 
harvesting nation that is participating in, and in compliance with, the 
IDCP.

[65 FR 56, Jan. 3, 2000]



Sec. 216.47  Access to marine mammal tissue, analyses, and data.

    (a) Applications for the National Marine Mammal Tissue Bank samples 
(NMMTB). (1) A principal investigator, contributor or holder of a 
scientific research permit issued in accordance with the provisions of 
this subpart may apply for access to a tissue specimen sample in the 
NMMTB. Applicants for tissue specimen samples from the NMMTB must submit 
a signed written request with attached study plan to the Marine Mammal 
Health and Stranding Response Program (MMHSRP) Program Manager, Office 
of Protected Resources, NMFS. The written request must include:
    (i) A clear and concise statement of the proposed use of the banked 
tissue specimen. The applicant must demonstrate that the proposed use of 
the banked tissue is consistent with the goals of the NMMTB and the 
MMHSRP.
    (A) The goals of the MMHSRP are to facilitate the collection and 
dissemination of reference data on marine mammals and health trends of 
marine mammal populations in the wild; to correlate the health of marine 
mammals and marine mammal populations in the wild with available data on 
physical, chemical, and biological environmental 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

[[Page 54]]

other analytes of interest and that will provide the highest quality 
samples for analyses using new and innovative techniques.
    (ii) A copy of the applicant's scientific research permit. The 
applicant must demonstrate that the proposed use of the banked tissue is 
authorized by the permit;
    (iii) Name of principal investigator, official title, and affiliated 
research or academic organization;
    (iv) Specific tissue sample and quantity desired;
    (v) Research facility where analyses will be conducted. The 
applicant must demonstrate that the research facility will follow the 
Analytical Quality Assurance (AQA) program, which was designed to ensure 
the accuracy, precision, level of detection, and intercompatibility of 
data resulting from chemical analyses of marine mammal tissues. The AQA 
consists of annual interlaboratory comparisons and the development of 
control materials and standard reference materials for marine mammal 
tissues;
    (vi) Verification that funding is available to conduct the research;
    (vii) Estimated date for completion of research, and schedule/date 
of subsequent reports;
    (viii) Agreement that all research findings based on use of the 
banked tissue will be reported to the NMMTB, MMHSRP Program Manager and 
the contributor; and the sequences of tissue specimen samples that are 
used/released for genetic analyses (DNA sequencing) will be archived in 
the National Center for biotechnology Information's GenBank. Sequence 
accessions in GenBank should document the source, citing a NIST field 
number that indentifies the animal; and
    (ix) Agreement that credit and acknowledgment will be given to U.S. 
Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National 
Institute of Standards and Technology (NIST), the Minerals Management 
Service (MMS), NMFS, the NMMTB, and the collector for use of banked 
tissues.
    (2) The applicant shall insert the following acknowledgment in all 
publications, abstracts, or presentations based on research using the 
banked tissue:
    The specimens used in this study were collected by [the contributor] 
and provided by the National Marine Mammal Tissue Bank, which is 
maintained in the National Biomonitoring Specimen Bank at NIST and which 
is operated under the direction of NMFS with the collaboration of MMS, 
USGS, USFWS, and NIST through the Marine Mammal Health and Stranding 
Response Program [and the Alaska Marine Mammal Tissue Archival Project 
if the samples are from Alaska].
    (3) Upon submission of a complete application, the MMHSRP Program 
Manager will send the request and attached study plan to the following 
entities which will function as the review committee:
    (i) Appropriate Federal agency (NMFS or USFWS) marine mammal 
management office for that particular species; and
    (ii) Representatives of the NMMTB Collaborating Agencies (NMFS, 
USFS, USGS Biological Resources Division, and NIST) If no member of the 
review committee is an expert in the field that is related to the 
proposed research activity, any member may request an outside review of 
the proposal, which may be outside of NMFS or USFWS but within the 
Federal Government.
    (4) The MMHSRP Program Manager will send the request and attached 
study plan to any contributor(s) of the tissue specimen sample. The 
contributor(s) of the sample may submit comments on the proposed 
research activity to the Director, Office of Protected Resources within 
30 days of the date that the request was sent to the contributor(s).
    (5) The USFWS Representative of the NMMTB Collaborating Agencies 
will be chair of review committees for requests involving species 
managed by the DOI. The MMHSRP Program Manager will be chair of all 
other review committees.
    (6) Each committee chair will provide recommendations on the request 
and an evaluation of the study plan to the 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

[[Page 55]]

(a)(4) of this section, and determination that the proposed use of the 
banked tissue specimen is consistent with the goals of the MMHSRP and 
the NMMTB. The Director will send a written decision to the applicant 
and send copies to all review committee members. If the samples are 
released, the response will indicate whether the samples have been 
homogenized and, if not, the homogenization schedule.
    (8) The applicant will bear all shipping and homogenization costs 
related to use of any specimens from the NMMTB.
    (9) The applicant will dispose of the tissue specimen sample 
consistent with the provisions of the applicant's scientific research 
permit after the research is completed, unless the requester submits 
another request and receives approval pursuant to this section. The 
request must be submitted within three months after the original project 
has been completed.
    (b) [Reserved]

[69 FR 41979, July 13, 2004]



Sec. Sec. 216.48-216.49  [Reserved]



                       Subpart E_Designated Ports



Sec. 216.50  Importation at designated ports.

    (a) Any marine mammal or marine mammal product which is subject to 
the jurisdiction of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, Department of Commerce and is 
intended for importation into the United States shall be subject to the 
provisions of 50 CFR part 14.
    (b) For the information of importers, designated ports of entry for 
the United States are:

New York, N.Y.
Miami, Fla.
Chicago, Ill.
San Francisco, Calif.
Los Angeles, Calif.
New Orleans, La.
Seattle, Wash.
Honolulu, Hi.

    (c) Additionally, marine mammals or marine mammal products which are 
entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the 
Virgin Islands and which are not to be forwarded or transhipped within 
the United States may be imported through the following ports:

Alaska--Juneau, Anchorage, Fairbanks
Hawaii--Honolulu
Puerto Rico--San Juan
Guam--Honolulu, Hi.
American Samoa--Honolulu, Hi.
Virgin Islands--San Juan, P.R.

    (d) Importers are advised to see 50 CFR part 14 for importation 
requirements and information.

[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]



       Subpart F_Pribilof Islands, Taking for Subsistence Purposes



Sec. 216.71  Allowable take of fur seals.

    Pribilovians may take fur seals on the Pribilof Islands if such 
taking is
    (a) For subsistence uses, and
    (b) Not accomplished in a wasteful manner.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.72  Restrictions on taking.

    (a) The harvests of seals on St. Paul and St. George Islands shall 
be treated independently for the purposes of this section. Any 
suspension, termination, or extension of the harvest is applicable only 
to the island for which it is issued.
    (b) By April 1 of every third year, beginning April 1994, the 
Assistant Administrator will publish in the Federal Register a summary 
of the preceding 3 years of harvesting and a discussion of the number of 
seals expected to be taken annually over the next 3 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.

[[Page 56]]

    (c)(1) No fur seal may be taken on the Pribilof Islands before June 
23 of each year.
    (2) No fur seal may be taken except by experienced sealers using the 
traditional harvesting methods, including stunning followed immediately 
by exsanguination. The harvesting method shall include organized drives 
of subadult males to killing fields unless it is determined by the NMFS 
representatives, in consultation with the Pribilovians conducting the 
harvest, that alternative methods will not result in increased 
disturbance to the rookery or the increased accidental take of female 
seals.
    (3) Any taking of adult fur seals or pups, or the intentional taking 
of subadult female fur seals is prohibited.
    (4) Only subadult male fur seals 124.5 centimeters or less in length 
may be taken.
    (5) Seals with tags and/or entangling debris may only be taken if so 
directed by NMFS scientists.
    (d) The scheduling of the harvest is at the discretion of the 
Pribilovians, but must be such as to minimize stress to the harvested 
seals. The Pribilovians must give adequate advance notice of their 
harvest schedules to the NMFS representatives to allow for necessary 
monitoring activities. Scheduling must be consistent with the following 
restrictions:
    (1) St. Paul Island--Seals may only be harvested from the following 
haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, 
Kitovi, and Reef. No haulout area may be harvested more than once per 
week.
    (2) St. George Island--Seals may only be harvested from the 
following haulout areas: Northeast and Zapadni. Neither haulout area may 
be harvested more than twice per week.
    (e)(1) The Assistant Administrator is required to suspend the take 
provided for in Sec. 215.31 when:
    (i) He determines, after reasonable notice by NMFS representatives 
to the Pribilovians on the island, that the subsistence needs of the 
Pribilovians on the island have been satisfied;

or
    (ii) He determines that the harvest is otherwise being conducted in 
a wasteful manner; or
    (iii) The lower end of the range of the estimated subsistence level 
provided in the notice issued under paragraph (b) of this section is 
reached.
    (2) A suspension based on a determination under paragraph (e)(1)(ii) 
of this section may be lifted by the Assistant Administrator if he finds 
that the conditions which led to the determination that the harvest was 
being conducted in a wasteful manner have been remedied.
    (3) A suspension issued in accordance with paragraph (e)(1)(iii) of 
this section may not exceed 48 hours in duration and shall be followed 
immediately by a review of the harvest data to determine if a finding 
under paragraph (e)(1)(i) of this section is warranted. If a the harvest 
is not suspended under paragraph (e)(1)(i) of this section, the 
Assistant Administrator must provide a revised estimate of the number of 
seals required to satisfy the Pribilovians' subsistence needs.
    (f) The Assistant Administrator shall terminate the take provided 
for in Sec. 215.31 on August 8 of each year or when it is determined 
under paragraph (e)(1)(i) of this section that the subsistence needs of 
the Pribilovians on the island have been satisfied, whichever occurs 
first.

[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 
FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.73  Disposition of fur seal parts.

    Except for transfers to other Alaskan Natives for barter or sharing 
for personal or family consumption, no part of a fur seal taken for 
subsistence uses may be sold or otherwise transferred to 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

[[Page 57]]

will convert the seal part into a handicraft.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.74  Cooperation with Federal officials.

    Pribilovians who engage in the harvest of seals are required to 
cooperate with scientists engaged in fur seal research on the Pribilof 
Islands who may need assistance in recording tag or other data and 
collecting tissue or other fur seal samples for research purposes. In 
addition, Pribilovians who take fur seals for subsistence uses must, 
consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS 
representatives on the Pribilof Islands who are responsible for 
compiling the following information on a daily basis:
    (a) The number of seals taken each day in the subsistence harvest,
    (b) The extent of the utilization of fur seals taken, and
    (c) Other information determined by the Assistant Administrator to 
be necessary for determining the subsistence needs of the Pribilovians 
or for making determinations under Sec. 215.32(e).

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]



                Subpart G_Pribilof Islands Administration



Sec. 216.81  Visits to fur seal rookeries.

    From June 1 to October 15 of each year, no person, except those 
authorized by a representative of the National Marine Fisheries Service, 
or accompanied by an authorized employee of the National Marine 
Fisheries Service, shall approach any fur seal rookery or hauling 
grounds nor pass beyond any posted sign forbidding passage.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.82  Dogs prohibited.

    In order to prevent molestation of fur seal herds, the landing of 
any dogs at Pribilof Islands is prohibited.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.83  Importation of birds or mammals.

    No mammals or birds, except household cats, canaries and parakeets, 
shall be imported to the Pribilof Islands without the permission of an 
authorized representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.84  [Reserved]



Sec. 216.85  Walrus and Otter Islands.

    By Executive Order 1044, dated February 27, 1909, Walrus and Otter 
Islands were set aside as bird reservations. All persons are prohibited 
to land on these islands except those authorized by the appropriate 
representative of the National Marine Fisheries Service.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.86  Local regulations.

    Local regulations will be published from time to time and will be 
brought to the attention of local residents and persons assigned to duty 
on the Islands by posting in public places and brought to the attention 
of tourists by personal notice.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]



Sec. 216.87  Wildlife research.

    (a) Wildlife research, other than research on North Pacific fur 
seals, including specimen collection, may be permitted on the Pribilof 
Islands subject to the following conditions:
    (1) Any person or agency, seeking to conduct such research shall 
first obtain any Federal or State of Alaska permit required for the type 
of research involved.
    (2) Any person seeking to conduct such research shall obtain prior 
approval of the Director, Pribilof Islands Program, National Marine 
Fisheries Service, National Oceanic and Atmospheric Administration, 1700 
Westlake Avenue North, Seattle, WA 98109, by filing with the Director an 
application which shall include:
    (i) Copies of the required Federal and State of Alaska permits; and

[[Page 58]]

    (ii) A resume of the intended research program.
    (3) All approved research shall be subject to all regulations and 
administrative procedures in effect on the Pribilof Islands, and such 
research shall not commence until approval from the Director is 
received.
    (4) Any approved research program shall be subject to such terms and 
conditions as the Director, Pribilof Islands Program deems appropriate.
    (5) Permission to utilize the Pribilof Islands to conduct an 
approved research program may be revoked by the Director, Pribilof 
Islands Program at any time for noncompliance with any terms and 
conditions, or for violations of any regulation or administrative 
procedure in effect on the Pribilof Islands.

[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]



                  Subpart H_Dolphin Safe Tuna Labeling

    Authority: 16 U.S.C. 1385.



Sec. 216.90  Purposes.

    This subpart governs the requirements for using the official mark 
described in Sec. 216.95 or an alternative mark that refers to 
dolphins, porpoises, or marine mammals, to label tuna or tuna products 
offered for sale in or exported from the United States using the term 
dolphin-safe or suggesting the tuna were harvested in a manner not 
injurious to dolphins.

[69 FR 55307, Sept. 13, 2004]



Sec. 216.91  Dolphin-safe labeling standards.

    (a) It is a violation of Section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or 
seller of any tuna products that are exported from or offered for sale 
in the United States to include on the label of those products the term 
``dolphin-safe'' or any other term or symbol that claims or suggests 
that the tuna contained in the products were harvested using a method of 
fishing that is not harmful to dolphins if the products contain tuna 
harvested:
    (1) ETP large purse seine vessel. In the ETP by a purse seine vessel 
of greater than 400 st (362.8 mt) carrying capacity unless:
    (i) the documentation requirements for dolphin-safe tuna under Sec. 
216.92 and 216.93 are met;
    (ii) No dolphins were killed or seriously injured during the sets in 
which the tuna were caught; and
    (iii) None of the tuna were caught on a trip using a purse seine net 
intentionally deployed on or to encircle dolphins, provided that this 
paragraph (a)(1)(iii) will not apply if the Assistant Administrator 
publishes a notification in the Federal Register announcing a finding 
under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse 
seine nets on or encirclement of dolphins is not having a significant 
adverse impact on any depleted stock.
    (2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a 
purse seine net:
    (i) In a fishery in which the Assistant Administrator has determined 
that a regular and significant association occurs between dolphins and 
tuna (similar to the association between dolphins and tuna in the ETP), 
unless such products are accompanied as described in Sec. 216.24(f)(3) 
by a written statement, executed by the Captain of the vessel and an 
observer participating in a national or international program acceptable 
to the Assistant Administrator, certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna were caught and no dolphins were 
killed or seriously injured in the sets in which the tuna were caught; 
or
    (ii) In any other fishery unless the products are accompanied as 
described in Sec. 216.24(f)(3) by a written statement executed by the 
Captain of the vessel certifying that no purse seine net was 
intentionally deployed on or used to encircle dolphins during the 
particular trip on which the tuna was harvested;
    (3) Driftnet. By a vessel engaged in large-scale driftnet fishing; 
or
    (4) Other fisheries. By a vessel in a fishery other than one 
described in paragraphs (a)(1) through (a)(3) of this section that is 
identified by the Assistant Administrator as having a regular

[[Page 59]]

and significant mortality or serious injury of dolphins, unless such 
product is accompanied as described in Sec. 216.24(f)(3) by a written 
statement, executed by the Captain of the vessel and an observer 
participating in a national or international program acceptable to the 
Assistant Administrator, that no dolphins were killed or seriously 
injured in the sets or other gear deployments in which the tuna were 
caught, provided that the Assistant Administrator determines that such 
an observer statement is necessary.
    (b) It is a violation of section 5 of the Federal Trade Commission 
Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in 
this section in a campaign or effort to mislead or deceive consumers 
about the level of protection afforded dolphins under the IDCP.
    (c) A tuna product that is labeled with the official mark, described 
in Sec. 216.95, may not be labeled with any other label or mark that 
refers to dolphins, porpoises, or marine mammals.

[69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009]



Sec. 216.92  Dolphin-safe requirements for tuna harvested in the ETP by large 

purse seine vessels.

    (a) U.S. vessels. Tuna products that contain tuna harvested by U.S. 
flag purse seine vessels of greater than 400 st (362.8 mt) carrying 
capacity in the ETP may be labeled dolphin-safe only if the following 
requirements are met:
    (1) Tuna Tracking Forms containing a complete record of all the 
fishing activities on the trip, certified by the vessel Captain and the 
observer, are submitted to the Administrator, Southwest Region, at the 
end of the fishing trip during which the tuna was harvested;
    (2) The tuna is delivered for processing to a U.S. tuna processor in 
a plant located in one of the 50 states, Puerto Rico, or American Samoa 
that is in compliance with the tuna tracking and verification 
requirements of Sec. 216.93; and
    (3) The tuna or tuna products meet the dolphin-safe labeling 
standards under Sec. 216.91.
    (b) Imported tuna. (1) Yellowfin tuna or tuna products harvested in 
the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity 
and presented for import into the United States may be labeled dolphin-
safe only if the yellowfin tuna was harvested by a U.S. vessel fishing 
in compliance with the requirements of the IDCP and applicable U.S. law, 
or by a vessel belonging to a nation that has obtained an affirmative 
finding under Sec. 216.24(f)(8).
    (2) Tuna or tuna products, other than yellowfin tuna, harvested in 
the ETP by purse seine vessels of greater than 400 st (362.8 mt) 
carrying capacity and presented for import into the United States may be 
labeled dolphin-safe only if:
    (i) The tuna was harvested by a U.S. vessel fishing in compliance 
with the requirements of the IDCP and applicable U.S. law, or by a 
vessel belonging to a nation that is a Party to the Agreement on the 
IDCP or has applied to become a Party and is adhering to all the 
requirements of the Agreement on the IDCP Tuna Tracking and Verification 
Plan;
    (ii) The tuna or tuna products are accompanied 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.

[[Page 60]]

purse seine fishing, processing, and marketing in the United States and 
abroad. Verification of tracking system operations is attained through 
the establishment of audit and document review requirements. The 
tracking program is consistent with the international tuna tracking and 
verification program adopted by the Parties to the Agreement on the 
IDCP.
    (a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine 
vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the 
ETP, IDCP approved Tuna Tracking Forms (TTFs), bearing a unique number 
assigned to that trip, are used by the observer to record every set made 
during that trip. One TTF is used to record dolphin-safe sets and a 
second TTF is used to record non-dolphin-safe sets. The information 
entered on the TTFs following each set includes the date, well number, 
weights by species composition, estimated tons loaded, and additional 
notes, if any. The observer and the vessel engineer initial the entry as 
soon as possible following each set, and the vessel captain and observer 
review and sign both TTFs at the end of the fishing trip certifying that 
the information on the forms is accurate. TTFs are confidential official 
documents of the IDCP, consistent with Article XVIII of the Agreement on 
the IDCP, and the Agreement on the IDCP Rules of Confidentiality.
    (b) Dolphin-Safe Certification. Upon request, the Office of the 
Administrator, Southwest Region, will provide written certification that 
tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 
mt) carrying capacity is dolphin-safe, but only if NMFS' review of the 
TTFs for the subject trip shows that the tuna for which the 
certification is requested is dolphin-safe under the requirements of the 
Agreement on the IDCP and U.S. law.
    (c) Tracking fishing operations. (1) During ETP fishing trips by 
purse seine vessels greater than 400 st (362.8 mt) carrying capacity, 
tuna caught in sets designated as dolphin-safe by the vessel observer 
must be stored separately from tuna caught in non-dolphin-safe sets from 
the time of capture through unloading. Vessel personnel will decide into 
which wells tuna will be loaded. The observer will initially designate 
whether each set is dolphin-safe or not, based on his/her observation of 
the set. The observer will initially identify a vessel fish well as 
dolphin-safe if the first tuna loaded into the well during a trip was 
captured in a set in which no dolphin died or was seriously injured. The 
observer will initially identify a vessel fish well as non-dolphin-safe 
if the first tuna loaded into the well during a trip was captured in a 
set in which a dolphin died or was seriously injured. Any tuna loaded 
into a well previously designated non-dolphin-safe is considered non-
dolphin-safe tuna. The observer will change the designation of a 
dolphin-safe well to non-dolphin-safe if any tuna are loaded into the 
well that were captured in a set in which a dolphin died or was 
seriously injured.
    (2) The captain, managing owner, or vessel agent of a U.S. purse 
seine vessel greater than 400 st (362.8 mt) returning to port from a 
trip, any part of which included fishing in the ETP, must provide at 
least 48 hours notice of the vessel's intended place of landing, arrival 
time, and schedule of unloading to the Administrator, Southwest Region.
    (3) If the trip terminates when the vessel enters port to unload 
part or all of its catch, new TTFs will be assigned to the new trip, and 
any information concerning tuna retained on the vessel will be recorded 
as the first entry on the TTFs for the new trip. If the trip is not 
terminated following a partial unloading, the vessel will retain the 
original TTFs and submit a copy of those TTFs to the Administrator, 
Southwest Region, within 5 working days. In either case, the species and 
amount unloaded will be noted on the respective originals.
    (4) Tuna offloaded to trucks, storage facilities, or carrier vessels 
must be loaded or stored in such a way as to maintain and safeguard the 
identification of the dolphin-safe or non-dolphin-safe designation of 
the tuna as it left the fishing vessel.
    (5) 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

[[Page 61]]

conducted consistent with the international tuna tracking and 
verification program adopted by the Parties to the Agreement on the 
IDCP.
    (d) Tracking cannery operations. (1) Whenever a U.S. tuna canning 
company in the 50 states, Puerto Rico, or American Samoa receives a 
domestic or imported shipment of ETP caught tuna for processing, a NMFS 
representative may be present to monitor delivery and verify that 
dolphin-safe and non-dolphin-safe tuna are clearly identified and remain 
segregated. Such inspections may be scheduled or unscheduled, and 
canners must allow the NMFS representative access to all areas and 
records.
    (2) Tuna processors must submit a report to the Administrator, 
Southwest Region, of all tuna received at their processing facilities in 
each calendar month whether or not the tuna is actually canned or stored 
during that month. Monthly cannery receipt reports must be submitted 
electronically or by mail before the last day of the month following the 
month being reported. Monthly reports must contain the following 
information:
    (i) Domestic receipts: dolphin-safe status, species, condition 
(round, loin, dressed, gilled and gutted, other), weight in short tons 
to the fourth decimal, ocean area of capture (ETP, western Pacific, 
Indian, eastern and western Atlantic, other), catcher vessel, trip 
dates, carrier name, unloading dates, and location of unloading.
    (ii) Import receipts: In addition to the information required in 
paragraph (d)(2)(i) of this section, a copy of the FCO for each imported 
receipt must be provided.
    (3) Tuna processors must report on a monthly basis the amounts of 
ETP-caught tuna that were immediately utilized upon receipt or removed 
from cold storage. This report may be submitted in conjunction with the 
monthly report required in paragraph (d)(2) of this section. This report 
must contain:
    (i) The date of removal from cold storage or disposition;
    (ii) Storage container or lot identifier number(s) and dolphin-safe 
or non-dolphin-safe designation of each container or lot; and
    (iii) Details of the disposition of fish (for example, canning, 
sale, rejection, etc.).
    (4) During canning activities, non-dolphin-safe tuna may not be 
mixed in any manner or at any time during processing with any dolphin-
safe tuna or tuna products and may not share the same storage 
containers, cookers, conveyers, tables, or other canning and labeling 
machinery.
    (e) Tracking imports. All tuna products, except fresh tuna, that are 
imported into the United States must be accompanied 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 must be submitted by the importer of record to the 
Administrator, Southwest Region, within 10 calendar days of the 
shipment's entry into the commerce of the United States as required by 
Sec. 216.24 (f)(3)(ii).
    (f) Verification requirements--(1) Record maintenance. Any exporter, 
transshipper, importer, processor, or wholesaler/distributor of any tuna 
or tuna products must maintain records related to that tuna for at least 
2 years. These records include, but are not limited to: FCOs and 
required certifications, any reports required in paragraphs (a), (b) and 
(d) of this section, invoices, other import documents, and trip reports.
    (2) Record submission. Within 10 calendar days of receiving a 
shipment of tuna or tuna products, any exporter, transshipper, importer, 
processor, or wholesaler/distributor of tuna or tuna products must 
submit to the Administrator, Southwest Region, all corresponding FCOs 
and required certifications for those tuna or tuna products.
    (3) Audits and spot checks. Upon request of the Administrator, 
Southwest Region, any exporter, transshipper, importer, processor, or 
wholesaler/distributor of tuna or tuna products must provide the 
Administrator, Southwest Region, timely access to all pertinent records 
and facilities to allow for audits and spot-checks on caught, landed, 
stored, and processed tuna.
    (g) Confidentiality of proprietary information. Information 
submitted to the

[[Page 62]]

Assistant Administrator under this section will be treated as 
confidential in accordance with NOAA Administrative Order 216-100 
``Protection of Confidential Fisheries Statistics.''

[69 FR 55307, Sept. 13, 2004, as amended at 70 FR 19009, Apr. 12, 2005; 
74 FR 1618, Jan. 13, 2009]



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:
[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

[[Page 63]]

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 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.

[[Page 64]]

    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

[[Page 65]]

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 
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

[[Page 66]]

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

[[Page 67]]

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 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

[[Page 68]]

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.



    Subpart J_Taking Marine Mammals Incidental to Coastal Commercial 

    Fireworks Displays at Monterey Bay National Marine Sanctuary, CA

    Source: 71 FR 40932, July 19, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 40932, July 19, 2006, Subpart J 
consisting of Sec. Sec. 216.110 through 216.119 were added, effective 
July 4, 2006 through July 3, 2011.



Sec. 216.110  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammal species specified in paragraph (b) of this 
section by the MBNMS.
    (b) The incidental take, by Level B harassment only, of marine 
mammals under the activity identified in this section is limited to the 
following species: California sea lions (Zalophus californianus) and 
Pacific harbor seals (Phoca vitulina).



Sec. 216.111  Effective dates.

    Regulations in this subpart are effective from July 4, 2006, through 
July 3, 2011.



Sec. 216.112  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.117, the Holder of the Letter of Authorization (i.e. the 
Superintendent of MBNMS) may incidentally, but not intentionally, take 
marine mammals by Level B harassment only, within the area described in 
Sec. 216.110(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified in Sec. 216.110(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, any 
adverse impacts on marine mammals and their habitat.
    (c) The taking of marine mammals is authorized for the species 
listed in Sec. 216.110(b) and is limited to the Level B

[[Page 69]]

Harassment of no more than 6,170 California sea lions and 1,065 harbor 
seals annually.



Sec. 216.113  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.110 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.117, no person in connection with the activities described in Sec. 
216.110 may:
    (a) Take any marine mammal not specified in Sec. 216.110(b);
    (b) Take any marine mammal specified in Sec. 216.110(b) other than 
by incidental, unintentional Level B harassment;
    (c) Take a marine mammal specified in Sec. 216.110(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.117.



Sec. 216.114  Mitigation.

    (a) The activity identified in Sec. 216.110(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.110(a), all the mitigation measures contained in 
the Letter of Authorization issued under Sec. Sec. 216.106 and 216.117 
must be implemented, including but not limited to:
    (1) Limiting the location of the authorized fireworks displays to 
the four specifically prescribed areas at Half Moon Bay, the Santa Cruz/
Soquel area, the northeastern Monterey Peninsula, and Cambria (Santa 
Rosa Creek);
    (2) Limiting the total frequency of authorized fireworks displays to 
no more than 20 total displays per year and the average frequency to no 
more than one fireworks display every two months in each of the four 
conditional display areas;
    (3) Limiting the duration of authorized individual fireworks 
displays to no longer than 30 minutes each, with the exception of two 
longer shows not to exceed 1 hour;
    (4) Prohibiting fireworks displays at MBNMS between March 1 and June 
30 of any year; and
    (5) Implementing the following special conditions for fireworks when 
authorizing fireworks displays at the MBNMS:
    (i) Delay of aerial ``salute'' effects until five minutes after the 
commencement of any fireworks display.
    (ii) Removal of all plastic labels and wrappings from pyrotechnic 
devices prior to use.
    (iii) Required recovery of all fireworks related debris from the 
launch site and affected beaches on the evening of the display and again 
on the morning after.
    (b) The mitigation measures that the individuals conducting the 
fireworks are responsible for shall be included as a requirement in any 
Authorization the MBNMS issues to the individuals.



Sec. 216.115  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.117 for activities described in Sec. 
216.110(a) is required to cooperate with the National Marine Fisheries 
Service (NMFS), and any other Federal, state or local agency monitoring 
the impacts of the activity on marine mammals. The Holder of the Letter 
of Authorization must notify the Director, Office of Protected 
Resources, National Marine Fisheries Service, or designee, by telephone 
(301-713-2289), within 48 hours if the authorized activity identified in 
Sec. 216.110(a) is thought to have resulted in the mortality or injury 
of any marine mammals, or in any take of marine mammals not identified 
in Sec. 216.110(b).
    (b) The Holder of the Letter of Authorization must conduct all 
monitoring and/or research required under the Letter of Authorization 
including, but not limited to:
    (1) A one-time comprehensive pinniped census at the City of Monterey 
Fourth of July Celebration in 2007;
    (2) A one-time acoustic measurement of the Monterey Fourth of July 
Celebration in 2007;

[[Page 70]]

    (3) Counts of pinnipeds in the impact area prior to all displays at 
all locations; and
    (4) Reporting to NMFS of all marine mammal injury or mortality 
encountered during debris cleanup the morning after every fireworks 
display authorized by the Sanctuary.
    (c) Unless specified otherwise in the Letter of Authorization, the 
Holder of the Letter of Authorization must submit a draft annual 
monitoring report to the Director, Office of Protected Resources, NMFS, 
no later than 60 days after the conclusion of each calendar year. This 
report must contain;
    (1) An estimate of the number of marine mammals disturbed by the 
authorized activities,
    (2) Results of the monitoring required in Sec. 216.115 (b) and (c) 
and any additional information required by the Letter of Authorization. 
A final annual monitoring report must be submitted to the NMFS within 30 
days after receiving comments from NMFS on the draft report. If no 
comments are received from NMFS, the draft report will be considered to 
be the final annual monitoring report.
    (d) A draft comprehensive monitoring report on all marine mammal 
monitoring and research conducted during the period of these regulations 
must be submitted to the Director, Office of Protected Resources, NMFS 
at least 120 days prior to expiration of these regulations or 120 days 
after the expiration of these regulations if renewal of the regulations 
will not be requested. A final comprehensive monitoring report must be 
submitted to the NMFS within 30 days after receiving comments from NMFS 
on the draft report. If no comments are received from NMFS, the draft 
report will be considered to be the final comprehensive monitoring 
report.



Sec. 216.116  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined by Sec. 216.103) conducting the activity 
identified in Sec. 216.110(a) must apply for and obtain either an 
initial Letter of Authorization in accordance with Sec. Sec. 216.117 or 
a renewal under Sec. 216.118.



Sec. 216.117  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, subject to annual renewal pursuant to the conditions in Sec. 
216.118.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses (i.e., mitigation); and
    (3) Requirements for mitigation, monitoring and reporting.
    (c) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact on 
the affected species or stock of marine mammal(s).
    (d) The U.S. Citizen, i.e., the MBNMS, operating under an LOA must 
clearly describe in any Sanctuary Authorizations issued to the 
individuals conducting fireworks displays, any requirements of the LOA 
for which the individuals conducting fireworks are responsible.



Sec. 216.118  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.117 for the activity identified in Sec. 216.110(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.116 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.115(b), and the Letter of Authorization issued under Sec. 216.117, 
which has been reviewed and accepted by NMFS; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 216.114 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.117,

[[Page 71]]

were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.118 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the NMFS will provide the public 
a period of 30 days for review and comment on the request. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.



Sec. 216.119  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 
and 216.117 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.118, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.110(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.117 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.



Subpart K_Taking Of Marine Mammals Incidental To Space Vehicle And Test 
                            Flight Activities

    Source: 74 FR 6242, Feb. 6, 2009, unless otherwise noted.

    Effective Date Note: 74 FR 6242, Feb. 6, 2009, subpart K, consisting 
of Sec. Sec. 216.120 through 216.129 were added, effective Feb. 7, 2009 
through Feb. 7, 2014.



Sec. 216.120  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammals specified in paragraph (b) of this section by 
the 30th Space Wing, United States Air Force, and those persons it 
authorizes to engage in:
    (1) Launching up to 30 space and missiles vehicles each year from 
Vandenberg Air Force Base, for a total of up to 150 missiles and rockets 
over the 5-year period of the regulations in this subpart,
    (2) Launching up to 20 rockets each year from Vandenberg Air Force 
Base, for a total of up to 100 rocket launches over the 5-year period of 
the regulations in this subpart,
    (3) Aircraft flight test operations, and
    (4) Helicopter operations from Vandenberg Air Force Base.
    (b) The incidental take of marine mammals on Vandenberg Air Force 
Base and in waters off southern California, under the activity 
identified in paragraph (a) of this section, is limited to the following 
species: Harbor seals (Phoca vitulina); California sea lions (Zalophus 
californianus); northern elephant seals (Mirounga angustirostris); and 
northern fur seals (Callorhinus ursinus).



Sec. 216.121  Effective dates.

    Regulations in this subpart are effective from February 7, 2009, 
through February 6, 2014.



Sec. 216.122  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 216.106 
and 216.127, the 30th Space Wing, U.S. Air Force,

[[Page 72]]

its contractors, and clients, may incidentally, but not intentionally, 
take marine mammals by harassment, within the area described in Sec. 
216.120, 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 taking of marine mammals is authorized for the species 
listed in Sec. 216.120(b) and is limited to Level B Harassment.



Sec. 216.123  Prohibitions.

    Notwithstanding takings specified in Sec. 216.120 and authorized by 
a Letter of Authorization issued under Sec. Sec. 216.106 and 216.127, 
no person in connection with the activities described in Sec. 216.120 
may:
    (a) Take any marine mammal not specified in Sec. 216.120(b);
    (b) Take any marine mammal specified in Sec. 216.120(b) other than 
by incidental, unintentional harassment;
    (c) Take a marine mammal specified in Sec. 216.120(b) if such 
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 216.127.



Sec. 216.124  Mitigation.

    (a) The activity identified in Sec. 216.120(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.120(a), the mitigation measures contained in the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.127 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 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.
    (5) Additional mitigation measures as contained in a Letter of 
Authorization.
    (b) [Reserved]



Sec. 216.125  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.127 for activities described in Sec. 
216.120(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, Southwest 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. 216.120(a) is

[[Page 73]]

thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified in Sec. 
216.120(b), then the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, NMFS, or designee, by 
telephone (301-713-2289), within 48 hours of the discovery of the 
injured or dead animal.
    (b) Holders of Letters of Authorization must designate qualified, 
on-site individuals approved in advance by NMFS, as specified in the 
Letter of Authorization, to:
    (1) Conduct observations on harbor seal, elephant seal, and sea lion 
activity in the vicinity of the rookery nearest the launch platform or, 
in the absence of pinnipeds at that location, at another nearby 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 could 
occur in those areas (this determination will be made in consultation 
with NMFS),
    (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) 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 a report to the 
Southwest 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.
    (e) An annual report must be submitted at the time of renewal of the 
Letter of Authorization.
    (f) A final report must be submitted at least 180 days prior to 
expiration of these regulations. This report will:
    (1) Summarize the activities undertaken and the results reported in 
all previous reports,
    (2) Assess the impacts at each of the major rookeries,
    (3) Assess the cumulative impacts on pinnipeds and other marine 
mammals from Vandenberg activities, and
    (4) State the date(s), location(s), and findings of any research 
activities related to monitoring the effects on launch noise and sonic 
booms on marine mammal populations.



Sec. 216.126  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations

[[Page 74]]

in this subpart, the U.S. citizen (as defined by Sec. 216.103) 
conducting the activity identified in Sec. 216.120(a) (30th Space Wing, 
U.S. Air Force) must apply for and obtain either an initial Letter of 
Authorization in accordance with Sec. 216.127 or a renewal under Sec. 
216.128.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (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) 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 pinnipeds.



Sec. 216.127  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.128.
    (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. 216.128  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.127 for the activity identified in Sec. 216.120(a) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.126 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.125(d) and (e), and the Letter of Authorization issued under Sec. 
216.127, 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. 216.124 and 216.125 and the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.127, 
were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.128 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. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.



Sec. 216.129  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. Sec. 216.106 
and 216.127 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.128, without

[[Page 75]]

modification (except for the period of validity), is not considered a 
substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.120(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.127 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.

Subparts L-M [Reserved]



    Subpart N_Taking Of Marine Mammals Incidental To Missile Launch 


                 Activities from San Nicolas Island, CA

    Source: 74 FR 26587, June 3, 2009, unless otherwise noted.

    Effective Date Note: At 74 FR 26587, June 3, 2009, subpart N, 
consisting of Sec. Sec. 216.150 through 216.159 was added, effective 
June 2, 2009 through June 2, 2014.



Sec. 216.150  Specified activity and specified geographical region.

    (a) This subpart applies 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 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 Coyote (or similar sized and smaller) 
missiles per year from San Nicolas Island, California.



Sec. 216.151  Effective dates.

    This subpart is effective June 2, 2009 through June 2, 2014.



Sec. 216.152  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.157, the U.S. Navy, its contractors, and clients, may 
incidentally, but not intentionally, take marine mammals by harassment, 
within the area described in Sec. 216.150, 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 taking of marine mammals is authorized for the species 
listed in Sec. 216.150(b) and is limited to Level B Harassment.



Sec. 216.153  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.150 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.157, no person in connection with the activities described in Sec. 
216.150 may:
    (a) Take any marine mammal not specified in Sec. 216.150(b);
    (b) Take any marine mammal specified in Sec. 216.150(b) other than 
by incidental, unintentional harassment, as discussed in Sec. 216.152;
    (c) Take a marine mammal specified in Sec. 216.150(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 216.157.



Sec. 216.154  Mitigation.

    (a) The activity identified in Sec. 216.150 must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.150(c), the mitigation measures contained in the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.157 must 
be implemented. These mitigation measures include (but are not limited 
to):

[[Page 76]]

    (1) The holder of the Letter of Authorization must prohibit 
personnel from entering pinniped haul-out sites below the missile's 
predicted flight path for 2 hours prior to planned missile launches.
    (2) The holder of the Letter of Authorization must avoid launch 
activities during harbor seal pupping season (February through April), 
unless constrained by factors including, but not limited to, human 
safety, national security, or for launch trajectory necessary to meet 
mission objectives.
    (3) The holder of the Letter of Authorization must limit launch 
activities during other pinniped pupping seasons, unless constrained by 
factors including, but not limited to, human safety, national security, 
or for launch trajectory necessary to meet mission objectives.
    (4) The holder of the Letter of Authorization must not launch 
missiles 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 launching 
multiple missiles in quick succession over haul-out sites, especially 
when young pups are present, except when required by mission objectives.
    (6) The holder of the Letter of Authorization must limit launch 
activities during nighttime hours, except when required by mission 
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, adverse weather conditions), 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. 216.155  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.157 for activities described in Sec. 216.150 
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, Southwest Region, NMFS, by letter, e-mail, or telephone, 
at least 1 week prior to activities possibly involving the taking of 
marine mammals. If the authorized activity identified in Sec. 216.150 
is thought to have resulted in the mortality or injury of any marine 
mammals or in any take of marine mammals not identified in Sec. 
216.150(b), then the Holder of the Letter of Authorization must notify 
the Director, Office of Protected Resources, NMFS, or designee, by 
telephone (301-713-2289), and the Administrator, Southwest 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 the 
National Marine Fisheries Service, to record the effects of the launch 
activities and the resulting noise on pinnipeds.
    (d) The holder of the Letter of Authorization must implement the 
following monitoring measures:
    (1) Visual Land-Based Monitoring. (i) Prior to each missile launch, 
an observer(s) will place 3 autonomous digital video cameras overlooking 
chosen haul-out sites located varying distances from the missile launch 
site.

[[Page 77]]

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, on pinniped presence and activity will 
be conducted and recorded in a field logbook or recorded on digital 
video for subsequent analysis for no less than 1 hour prior to the 
estimated launch time and for up to 1 hour immediately following each 
missile launch.
    (iii) Documentation, both via autonomous video camera and human 
observer, will consist of:
    (A) Numbers and sexes of each age class in focal subgroups;
    (B) Description and timing of launch activities or other disruptive 
event(s);
    (C) Movements of pinnipeds, including number and proportion moving, 
direction and distance moved, and pace of movement;
    (D) Description of reactions;
    (E) Minimum distances between interacting and reacting pinnipeds;
    (F) Study location;
    (G) Local time;
    (H) Substratum type;
    (I) Substratum slope;
    (J) Weather condition;
    (K) Horizontal visibility; and
    (L) Tide state.
    (2) Acoustic Monitoring. (i) During all missile launches, calibrated 
recordings of the levels and characteristics of the received launch 
sounds will be obtained from 3 different locations of varying distances 
from the missile's flight path. To the extent practicable, these 
acoustic recording locations will correspond with the haul-out sites 
where video monitoring is done.
    (ii) Acoustic recordings will be supplemented by the use of radar 
and telemetry systems to obtain the trajectory of missiles in three 
dimensions, whenever data coverage allows.
    (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 missile.
    (e) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) For each missile launch, the lead contractor or lead observer 
for the holder of the Letter of Authorization must provide a status 
report to the National Marine Fisheries Service, Southwest Regional 
Office, providing reporting items found under the Letter of 
Authorization, unless other arrangements for monitoring are agreed in 
writing.
    (2) An initial report must be submitted to the Office of Protected 
Resources, and the Southwest Regional Office at least 60 days prior to 
the expiration of each annual Letter of Authorization. This report must 
contain the following information:
    (i) Timing and nature of launch operations;
    (ii) Summary of pinniped behavioral observations;
    (iii) Estimate of the amount and nature of all takes by harassment 
or by other means; and
    (iv) Evidence of compliance with mitigation measures.
    (3) A draft comprehensive technical report will be submitted to the 
Office of Protected Resources and Southwest Regional Office, National 
Marine Fisheries Service, 180 days prior to the expiration of 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 final Letter of Authorization.
    (4) A revised final comprehensive technical report, including all 
monitoring results during the entire period of the Letter of 
Authorization will be due 90 days after the end of the period of 
effectiveness of the regulations in this subpart.
    (5) Both the 60-day and final reports will be subject to review and 
comment by the National Marine Fisheries Service. Any recommendations 
made by the National Marine Fisheries Service must be addressed in the 
final comprehensive report prior to acceptance by the National Marine 
Fisheries Service.
    (f) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, or in the Letter of Authorization issued under 
Sec. Sec. 216.106 and 216.157, including the retention of

[[Page 78]]

marine mammals, may be conducted without the need for a separate 
scientific research permit.
    (g) In coordination and compliance with appropriate Navy 
regulations, at its discretion, the National Marine Fisheries Service 
may place an observer on San Nicolas Island for any activity involved in 
marine mammal monitoring either prior to, during, or after a missile 
launch in order to monitor the impact on marine mammals.



Sec. 216.156  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to the regulations 
contained in this subpart, the U.S. citizen (as defined by Sec. 
216.103) conducting the activity identified in Sec. 216.150 (Naval Air 
Warfare Center Weapons Division, U.S. Navy) must apply for and obtain 
either an initial Letter of Authorization in accordance with Sec. 
216.157 or a renewal under Sec. 216.158.
    (b) The application must be submitted to NMFS at least 30 days 
before the activity is scheduled to begin.
    (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) 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 pinnipeds.



Sec. 216.157  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.158.
    (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. 216.158  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec. 216.106 and 
216.157 for the activity identified in Sec. 216.150 will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.156 will be undertaken and that 
there will not be a substantial modification to the described work, 
mitigation or monitoring undertaken during the upcoming 12 months;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.155(e), and the Letter of Authorization issued under Sec. 216.157, 
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. 216.154 and 216.155 and the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.157, 
were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. 216.106 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. Review and 
comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.

[[Page 79]]

    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.



Sec. 216.159  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. Sec. 216.106 
and 216.157 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.158, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.150(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.157 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 O_Taking of Marine Mammals Incidental to Shock Testing the USS 

  MESA VERDE (LPD 19) by Detonation of Conventional Explosives in the 

               Offshore Waters of the U.S. Atlantic Coast

    Source: 73 FR 43136, July 24, 2007, unless otherwise noted.

    Effective Date Note: At 73 FR 43136, July 24, 2008, subpart O, 
consisting of Sec. Sec. 216.161 through 216.166 was added, effective 
July 18, 2008 through July 18, 2013.



Sec. 216.161  Specified activity and incidental take levels by species.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by persons 
engaged in the detonation of up to four 4,536 kg (10,000 lb) 
conventional explosive charges within the waters of the U.S. Atlantic 
Coast offshore Mayport, FL, for the purpose of conducting one full ship-
shock trial (FSST) of the USS MESA VERDE (LPD 19) during the time period 
between July 23 and September 20, 2008, and May 1 and September 20, 2009 
through 2013.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to the following 
species: Minke whale (Balaenoptera acutorostrata), dwarf sperm whale 
(Kogia simus); pygmy sperm whale (K. breviceps); pilot whale 
(Globicephala macrorhynchus); Atlantic spotted dolphin (Stenella 
frontalis); spinner dolphin (S. longirostris); bottlenose dolphin 
(Tursiops truncatus); Risso's dolphin (Grampus griseus); rough-toothed 
dolphin (Steno bredanensis); common dolphin (Delphinus delphis), false 
killer whale (Pseudorca crassidens); Cuvier's beaked whale (Ziphius 
cavirostris), Blainville's beaked whale (Mesoplodon densirostris); 
Gervais' beaked whale (M. europaeus); and True's beaked whale (M. 
mirus).
    (c) The incidental take of marine mammals identified in paragraph 
(b) of this section is limited to a total, across all species, of no 
more than 1 mortality or serious injury, 2 takings by Level A harassment 
(injuries), and 282 takings by Level B behavioral harassment (through 
temporary threshold shift). The incidental taking of any species listed 
as threatened or endangered under the Endangered Species Act is 
prohibited.



Sec. 216.162  Effective dates.

    Regulations in this subpart are effective July 18, 2008 through July 
18, 2013.



Sec. 216.163  Mitigation.

    (a) Under a Letter of Authorization issued pursuant to Sec. 
216.106, the U.S. Navy may incidentally, but not intentionally, take 
marine mammals in the course of the activity described in Sec. 
216.161(a) provided all requirements of these regulations and such 
Letter of Authorization are met.
    (b) The activity identified in paragraph Sec. 216.161(a) of this 
section must be conducted in a manner that minimizes, to the greatest 
extent practicable, adverse impacts on marine

[[Page 80]]

mammals and their habitat. When detonating explosives, the following 
mitigation measures must be implemented:
    (1) Except as provided under the following paragraph (2), if any 
marine mammals are visually detected within the designated 3.5 nm (6.5 
km) Safety Range surrounding the USS MESA VERDE, detonation must be 
delayed until the marine mammals are positively resighted outside the 
Safety Range either due to the animal(s) swimming out of the Safety 
Range or due to the Safety Range moving beyond the mammal's last 
verified location.
    (2) If a North Atlantic right whale or other marine mammal listed 
under the Endangered Species Act (ESA) is seen within the Safety Range, 
detonation must not occur until the animal is positively resighted 
outside the Safety Range and at least one additional aerial monitoring 
of the Safety Range shows that no other right whales or other ESA-listed 
marine mammals are present;
    (3) If the sea state exceeds 3 on the Beaufort scale (i.e., 
whitecaps on 33 to 50 percent of surface; 2 ft (0.6 m) to 3 ft (0.9 m) 
waves), the visibility is equal to or less than 3 nm (5.6 km), or the 
aircraft ceiling (i.e., vertical visibility) is equal to or less than 
1,000 ft (305 m), detonation must not occur until conditions improve 
sufficiently for aerial surveillance to be undertaken.
    (4) A detonation must not be conducted earlier than 3 hours after 
sunrise or later than 3 hours prior to sunset to ensure adequate 
daylight for conducting the pre-detonation and post-detonation 
monitoring requirements in Sec. 216.165;
    (5) If post-detonation surveys determine that an injury or lethal 
take of a marine mammal has occurred,
    (i) the Director, Office of Protected Resources, National Marine 
Fisheries Service must be notified within 24 hours of the taking 
determination,
    (ii) the FSST procedures and monitoring methods must be reviewed in 
coordination with the National Marine Fisheries Service, and
    (iii) appropriate changes to avoid future injury or mortality must 
be made prior to conducting the next detonation.



Sec. 216.164  Prohibitions.

    No person in connection with the activities described in Sec. 
216.161(a) shall:
    (a) Take any marine mammal not specified in Sec. 216.161(b);
    (b) Take any marine mammal specified in Sec. 216.161(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.161(b) if such 
taking results in more than a negligible impact on the species or stocks 
or marine mammals;
    (d) Violate, or failure to comply with, the requirements of a Letter 
of Authorization issued under Sec. 216.106.



Sec. 216.165  Requirements for monitoring and reporting.

    (a) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, or state or local agency with regulatory authority for 
monitoring the impacts of the activity on marine mammals. The holder 
must notify the Director, Office of Protected Resources, National Marine 
Fisheries Service at least 2 weeks prior to activities involving the 
detonation of explosives in order to satisfy paragraph (f) of this 
section.
    (b) The holder of the Letter of Authorization must designate at 
least 6 experienced on-site marine mammal observers (MMOs) onboard the 
USS MESA VERDE, 2 experienced MMOs onboard the survey aircraft and 2 
experienced MMOs onboard the Navy support vessel each of whom has been 
approved in advance by NMFS, to monitor the Safety Range for presence of 
marine mammals and to record the effects of explosives detonation on 
marine mammals that inhabit the Navy's Jacksonville/Charleston Operating 
Area offshore of Mayport, Florida.
    (c)(1) Prior to each detonation for the FSST, an area will be 
located which has been determined by an aerial survey to contain the 
lowest marine mammal abundance relative to other areas within the area 
off Mayport, FL.
    (2) The test area must be monitored by aerial and shipboard 
monitoring for the following periods of time:
    (i) 48-72 hours prior to a scheduled detonation (aircraft only),
    (ii) on the day of detonation,

[[Page 81]]

    (iii) immediately after each detonation and continuing for at least 
3 hours subsequent to each detonation (or until sighting conditions 
become unsuitable for visual observations),
    (iv) for at least 2 days after each detonation, unless weather and/
or sea conditions preclude surveillance, in which case post-test survey 
dates must be extended, and
    (v) for a period of 7 days after the last detonation for a minimum 
of 3 hours per day at the detonation site and down-current from the 
site.
    (3) Monitoring shall include, but is not limited to, aerial and 
vessel surveillance sufficient to ensure that no marine mammals are 
within the designated Safety Range prior to or at the time of 
detonation.
    (d) Under the direction of an attending U.S.-licensed veterinarian 
(an attending U.S. licensed veterinarian is one who has graduated from a 
veterinary school accredited by the American Veterinary Medical 
Association Council on Education, has a certificate by the American 
Veterinary Graduates Association's Education Commission for Foreign 
Veterinary Graduates, or has received equivalent formal education, as 
determined by the NMFS Assistant Administrator), an examination and 
recovery of any dead or injured marine mammals will be conducted in 
accordance with protocols and best practices of the NOAA Health and 
Stranding Response Program. Necropsies will be performed and tissue 
samples taken from any dead animals. After completion of the necropsy, 
animals not retained for shoreside examination will be tagged and 
returned to the sea.
    (e) Activities related to the monitoring described in paragraphs (c) 
and (d) of this section, including the retention of marine mammals, may 
be conducted without a separate scientific research permit. The use of 
retained marine mammals for scientific research other than shoreside 
examination must be authorized pursuant to Subpart D of this part.
    (f) Subject to relevant Navy regulations, the National Marine 
Fisheries Service at its discretion may place an observer on any ship or 
aircraft involved in marine mammal monitoring either prior to, during, 
or after explosives detonation.
    (g) A final report must be submitted to the Director, Office of 
Protected Resources, no later than 120 days after completion of the USS 
MESA VERDE (LPD 19) shock trial. This report must contain the following 
information:
    (1) Date and time of all detonations conducted under the Letter of 
Authorization.
    (2) A detailed description of all pre-detonation and post-detonation 
activities related to mitigating and monitoring the effects of 
explosives detonation on marine mammals.
    (3) Results of the monitoring program, including numbers by species/
stock of any marine mammals noted injured or killed as a result of the 
detonation and an estimate of the number, by species, of marine mammals 
in the Safety Range at the time of detonation based on post-test aerial 
monitoring and current density estimates.
    (4) Results of coordination with coastal marine mammal/sea turtle 
stranding networks.



Sec. 216.166  Modifications to the Letter of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification, including withdrawal or suspension, to a 
Letter of Authorization issued pursuant to Sec. 216.106 and subject to 
the provisions of this subpart shall be made until after notice and an 
opportunity for public comment.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.151(b), the Letter of 
Authorization may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published in 
the Federal Register subsequent to the action.



Subpart P_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Hawaii Range Complex (HRC)

    Source: 74 FR 1484, Jan. 12, 2009, unless otherwise noted.

[[Page 82]]


    Effective Date Note: At 74 FR 1484, Jan. 12, 2009, subpart P was 
added, effective Jan. 5, 2009 through Jan. 5, 2014.



Sec. 216.170  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 Hawaii Operational Area, which extends from 16 to 
43[deg] N. lat. and from 150 to 179[deg] degrees W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The use of the following mid-frequency active sonar (MFAS) and 
high frequency active sonar (HFAS) sources for U.S. Navy anti-submarine 
warfare (ASW) training in the amounts indicated below (10 percent):
    (i) AN/SQS-53 (hull-mounted sonar)--up to 6420 hours over the course 
of 5 years (an average of 1284 hours per year)
    (ii) AN/SQS-56 (hull-mounted sonar)--up to 1915 hours over the 
course of 5 years (an average of 383 hours per year)
    (iii) AN/AQS-22 (helicopter dipping sonar)--up to 5050 dips over the 
course of 5 years (an average of 1010 dips per year)
    (iv) SSQ-62 (sonobuoys)--up to 12115 sonobuoys over the course of 5 
years (an average of 2423 sonobuoys per year)
    (v) MK-48 (torpedoes)--up to 1565 torpedoes over the course of 5 
years (an average of 313 torpedoes per year)
    (vi) AN/BQQ-10 (submarine mounted sonar)--up to 1000 hours over the 
course of 5 years (an average of 200 per year)
    (2) The detonation of the underwater explosives indicated in 
paragraph (c)(2)(i) of this section conducted as part of the training 
exercises indicated in paragraph (c)(2)(ii) of this section:
    (i) Underwater Explosives:
    (A) 5[sec] Naval Gunfire (9.5 lbs).
    (B) 76 mm rounds (1.6 lbs).
    (C) Maverick (78.5 lbs).
    (D) Harpoon (448 lbs).
    (E) MK-82 (238 lbs).
    (F) MK-83 (574 lbs).
    (G) MK-84 (945 lbs).
    (H) MK-48 (851 lbs).
    (I) Demolition Charges (20 lbs).
    (J) EER/IEER (5 lbs).
    (ii) Training Events:
    (A) Mine Neutralization--up to 340 exercises over the course of 5 
years (an average of 68 per year).
    (B) Air-to-Surface MISSILEX--up to 250 exercises over the course of 
5 years (an average of 50 per year).
    (C) Surface-to-Surface MISSILEX--up to 60 exercises over the course 
of 5 years (an average of 12 per year).
    (D) BOMBEX--up to 195 exercises over the course of 5 years (an 
average of 38 per year).
    (E) SINKEX--up to 30 exercises over the course of 5 years (an 
average of 6 per year).
    (F) Surface-to-Surface GUNEX--up to 455 exercises over the course of 
5 years (an average of 91 per year).
    (G) Naval Surface Fire Support--up to 140 exercises over the course 
of 5 years (an average of 28 per year).



Sec. 216.171  Effective dates and definitions.

    (a) Regulations are effective January 5, 2009 through January 5, 
2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during a major training exercise and involves any one of the 
following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs, unless of species of concern listed in next bullet) 
found dead or live on shore within a two day period and occurring on 
same shore lines or facing shorelines of different islands.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: Beaked whale of any species, Kogia sp., 
Risso's dolphin, melon-headed whale, pilot whales, humpback whales, 
sperm whales, blue whales, fin whales, sei whales, or monk seal.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress.

[[Page 83]]

    (2) Shutdown (this definition specifically applies only to the word 
as used in Sec. 216.174(a)(1)(xxviii)(A)(1) and (2))--The cessation of 
MFAS operation or detonation of explosives within 14 nm of any live, in 
the water animal involved in a USE.



Sec. 216.172  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.177, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 216.170(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified in Sec. 216.170(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. 216.170(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--49470 (an average of 
9894 annually).
    (B) Minke whale (Balaenoptera acutorostrata)--320 (an average of 64 
annually).
    (C) Sei whale (Balaenoptera borealis)--230 (an average of 46 
annually).
    (D) Fin whale (Balaenoptera physalus)--230 (an average of 46 
annually).
    (E) Bryde's whale (Balaenoptera edeni)--320 (an average of 64 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--3905 (an average of 781 
annually).
    (B) Pygmy sperm whales (Kogia breviceps)--4325 (an average of 865 
annually).
    (C) Dwarf sperm whale (Kogia sima)--10610 (an average of 2122 
annually).
    (D) Cuvier's beaked whale (Ziphius cavirostris)--5750 (an average of 
1150 annually).
    (E) Blainville's beaked whale (Mesoplodon densirostris)--1785 (an 
average of 357 annually).
    (F) Longman's beaked whale (Indopacetus pacificus)--525 (an average 
of 105 annually).
    (G) Rough-toothed dolphin (Steno bredanensis)--5385 (an average of 
1077 annually).
    (H) Bottlenose dolphin (Tursiops truncatus)--3670 ( an average of 
734 annually).
    (I) Pan-tropical dolphins (Stenella attenuata)--10995 (an average of 
2199 annually).
    (J) Spinner dolphins (Stenella longirostris)--2105 (an average of 
421 annually).
    (K) Striped dolphins (Stenella coeruleoalba)--16045 (an average of 
3209 annually).
    (L) Risso's dolphin (Grampus griseus)--2485 (an average of 497 
annually).
    (M) Melon-headed whale (Peponocephala electra)--2985 (an average of 
597 annually).
    (N) Fraser's dolphin (Lagenodelphis hosei)--6235 (an average of 1247 
annually).
    (O) Pygmy killer whale (Feresa attenuata)--980 (an average of 196 
annually).
    (P) False killer whale (Pseudorca crassidens)--230 (an average of 46 
annually).
    (Q) Killer whale (Orcinus orca)--230 (an average of 46 annually).
    (R) Short-finned pilot whale (Globicephala macrorynchus)--8990 (an 
average of 1798 annually).
    (iii) Pinnipeds: Hawaiian monk seal (Monachus schauinslandi)--550 
(an average of 110 annually).
    (2) Level A Harassment and/or mortality of no more than 10 
individuals total of each of the species listed below over the course of 
the 5-year regulations: Bottlenose dolphin (Tursiops truncatus), Pygmy 
and Dwarf sperm whales (Kogia breviceps and sima), Melon-headed whale 
(Peponocephala electra), Pantropical spotted dolphin (Stenella 
attenuata), Pygmy killer whale (Feresa attenuata), Short-finned pilot 
whale (Globicephala

[[Page 84]]

macrorynchus), Striped dolphin (Stenella coeruleoalba), and Cuvier's 
beaked whale (Ziphius cavirostris), Blainville's beaked whale, 
(Mesoplodon densirostris), Longman's beaked whale (Indopacetus 
pacificus).



Sec. 216.173  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.172 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.177, no person in connection with the activities described in Sec. 
216.170 may:
    (a) Take any marine mammal not specified in Sec. 216.172(c);
    (b) Take any marine mammal specified in Sec. 216.172(c) other than 
by incidental take as specified in Sec. 216.172(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 216.172(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. Sec. 216.106 and 216.177.



Sec. 216.174  Mitigation.

    (a) When conducting training activities identified in Sec. 
216.170(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec. Sec. 216.106 of this chapter and 
216.177 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) Mitigation Measures for ASW training: (i) All lookouts onboard 
platforms involved in ASW training events shall review the NMFS-approved 
Marine Species Awareness Training (MSAT) material prior to use of mid-
frequency active sonar.
    (ii) All Commanding Officers, Executive Officers, and officers 
standing watch on the Bridge shall have reviewed the MSAT material prior 
to a training event employing the use of mid-frequency active sonar.
    (iii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (NAVEDTRA, 12968-D).
    (iv) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, Lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (v) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (vi) On the bridge of surface ships, there shall be at least three 
people on watch whose duties include observing the water surface around 
the vessel.
    (vii) All surface ships participating in ASW exercises shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
lookouts.
    (viii) Personnel on lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (ix) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and in 
good working order.
    (x) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (xi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (xii) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck.
    (xiii) CPF shall distribute the final mitigation measures contained 
in the LOA and BO to the Fleet.
    (xiv) Commanding Officers shall make use of marine species detection

[[Page 85]]

cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (xv) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (xvi) During mid-frequency active sonar training activities, 
personnel shall utilize all available sensor and optical systems (such 
as Night Vision Goggles) to aid in the detection of marine mammals.
    (xvii) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties.
    (xviii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards (182 m) of the sonobuoy.
    (xix) Marine mammal detections shall be reported immediately to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (xx) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that MFAS transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1000 yards 
(914 m) of the sonar dome (the bow).
    (A) Ships and submarines shall continue to limit maximum MFAS 
transmission levels by this 6-dB factor until the marine mammal has been 
seen to leave the area, has not been detected for 30 minutes, or the 
vessel has transited more than 2,000 yards (1828 m) beyond the location 
of the last detection.
    (B) The Navy shall ensure that MFAS transmissions will be limited to 
at least 10 dB below the equipment's normal operating level if any 
detected animals are within 500 yards (457 m) of the sonar dome. Ships 
and submarines shall continue to limit maximum ping levels by this 10-dB 
factor until the marine mammal has been seen to leave the area, has not 
been detected for 30 minutes, or the vessel has transited more than 2000 
yards (1828 m) beyond the location of the last detection.
    (C) The Navy shall ensure that MFAS transmissions are ceased if any 
detected marine mammals are within 200 yards of the sonar dome. MFAS 
transmissions will not resume until the marine mammal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yards beyond the location of the last 
detection.
    (D) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the Officer of the Deck concludes that dolphins 
or porpoises are deliberately closing to ride the vessel's bow wave, no 
further mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (E) If the need for power-down should arise as detailed in ``Safety 
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down will be to 229 dB, 
regardless of at what level above 235 dB sonar was being operated).
    (xxi) Prior to start up or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xxii) Sonar levels (generally)--Navy shall operate sonar at the 
lowest practicable level, not to exceed 235 dB, except as required to 
meet tactical training objectives.
    (xxiii) Helicopters shall observe/survey the vicinity of an ASW 
Exercise for 10 minutes before the first deployment of active (dipping) 
sonar in the water.

[[Page 86]]

    (xxiv) Helicopters shall not dip their sonar within 200 yards (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yards (183 m) after pinging has begun.
    (xxv) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
activities involving active mid-frequency sonar.
    (xxvi) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.
    (xxvii) Humpback Whale Cautionary Area: An area extending 5km (2.7 
nm) from a line drawn from Kaunakakai on the island of Molokai to Kaena 
Point on the Island of Lanai; and an area extending 5 km (2.7 nm) from a 
line drawn from Kaunolu on the Island of Lanai to the most Northeastern 
point on the Island of Kahoolawe; and within a line drawn from Kanapou 
Bay on the Island of Kahoolawe to Kanahena Point on the Island of Maui 
and a line drawn from Cape Halawa on the Island of Molokai to Lipo Point 
on the Island of Maui, excluding the existing submarine operating area.
    (A) Should national security needs require MFAS training and testing 
in the cautionary area between 15 December and 15 April, it must be 
personally authorized by the Commander, U.S. Pacific Fleet based on his 
determination that training and testing in that specific area is 
required for national security purposes. This authorization shall be 
documented by the CPF in advance of transiting and training in the 
cautionary area, and the determination shall be based on the unique 
characteristics of the area from a military readiness perspective, 
taking into account the importance of the area for humpback whales and 
the need to minimize adverse impacts on humpback whales from MFAS 
whenever practicable. Further, Commander, U.S. Pacific Fleet will 
provide specific direction on required mitigation measures prior to 
operational units transiting to and training in the cautionary area.
    (B) The Navy shall provide advance notification to NMFS of any such 
activities (listed in paragraph (a)(1)(xxvii)(A)of this section).
    (C) The Navy shall include in its periodic reports for compliance 
with the MMPA whether or not activities occurred in the Humpback Whale 
Cautionary Area and any observed effects on humpback whales due to the 
conduct of these activities.
    (xxviii) The Navy shall abide by the letter of the ``Stranding 
Response Plan for Major Navy Training Exercises in the HRC'' to include 
the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.171(b)) occurs during a Major Training Exercise 
(MTE, including RIMPAC, USWEX, or Multi-Strike Group Exercise) in the 
HRC, the Navy shall implement the procedures described below.
    (1) The Navy shall implement a Shutdown (as defined Sec. 
216.171(b)) when advised by a NMFS Office of Protected Resources 
Headquarters Senior Official designated in the HRC Stranding 
Communication Protocol that a USE involving live animals has been 
identified and that at least one live animal is located in the water. 
NMFS and Navy will maintain a dialogue, as needed, regarding the 
identification of the USE and the potential need to implement shutdown 
procedures.
    (2) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (3) If the Navy finds an injured or dead animal floating at sea 
during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of first discovery, observed behavior (if alive), and 
photo or video (if available). Based on the information provided, NMFS 
will determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.

[[Page 87]]

    (4) In the event, following a USE, that qualified individuals are 
attempting to herd animals back out to the open ocean and animals are 
not willing to leave, or animals are seen repeatedly heading for the 
open ocean but turning back to shore, NMFS and the Navy shall coordinate 
(including an investigation of other potential anthropogenic stressors 
in the area) to determine if the proximity of MFAS training activities 
or explosive detonations, though farther than 14 nm from the distressed 
animal(s), is likely contributing to the animals' refusal to return to 
the open water. If so, NMFS and the Navy will further coordinate to 
determine what measures are necessary to improve the probability that 
the animals will return to open water and implement those measures as 
appropriate.
    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the HRC 
Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS, and 
marine mammal sightings information associated with training activities 
occurring within 80 nm (148 km) and 72 hours prior to the USE event. 
Information not initially available regarding the 80 nm (148 km), 72 
hour period prior to the event will be provided as soon as it becomes 
available. The Navy will provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop a 
MOA, or other mechanism consistent with federal fiscal law requirements 
(and all other applicable laws), that will establish a framework whereby 
the Navy can (and provide the Navy examples of how they can best) assist 
NMFS with stranding investigations in certain circumstances.
    (xxix) While in transit, naval vessels shall be alert at all times, 
use extreme caution, and proceed at a ``safe speed'' so that the vessel 
can take proper and effective action to avoid a collision with any 
marine animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (xxx) When marine mammals have been sighted in the area, Navy 
vessels shall increase vigilance and take reasonable and practicable 
actions to avoid collisions and activities that might result in close 
interaction of naval assets and marine mammals. Actions may include 
changing speed and/or direction and are dictated by environmental and 
other conditions (e.g., safety, weather).
    (2) Mitigation for IEER--The following are protective measures for 
use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/IEER) 
given an explosive source generates the acoustic wave used in this 
sonobuoy.
    (i) Crews shall conduct aerial visual reconnaissance of the drop 
area prior to laying their intended sonobuoy pattern. This search should 
be conducted below 500 yards (457 m) at a slow speed, if operationally 
feasible and weather conditions permit. In dual aircraft training 
activities, crews are allowed to conduct coordinated area clearances.
    (ii) Crews shall conduct a minimum of 30 minutes of visual and 
acoustic monitoring of the search area prior to commanding the first 
post detonation. This 30-minute observation period may include pattern 
deployment time.
    (iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of 
observed marine mammal activity, the Navy shall deploy the receiver ONLY 
and monitor while conducting a visual search. When marine mammals are no 
longer detected within 1,000 yards (914 m) of the intended post 
position, co-locate the explosive source sonobuoy (AN/SSQ-110A) (source) 
with the receiver.
    (iv) When able, crews will conduct continuous visual and aural 
monitoring of marine mammal activity. This is to include monitoring of 
own-aircraft sensors from first sensor placement to checking off station 
and out of communication range of these sensors.
    (v) Aural Detection: If the presence of marine mammals is detected 
aurally, then that shall cue the aircrew to increase the diligence of 
their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then

[[Page 88]]

the crew may continue multi-static active search.
    (vi) Visual Detection:
    (A) If marine mammals are visually detected within 1,000 yards (914 
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use, then 
that payload shall not be detonated. Aircrews may utilize this post once 
the marine mammals have not been re-sighted for 30 minutes, or are 
observed to have moved outside the 1,000 yards (914 m) safety buffer.
    (B) Aircrews may shift their multi-static active search to another 
post, where marine mammals are outside the 1,000 yards (914 m) safety 
buffer.
    (vii) Aircrews shall make every attempt to manually detonate the 
unexploded charges at each post in the pattern prior to departing the 
operations area by using the ``Payload 1 Release'' command followed by 
the ``Payload 2 Release'' command. Aircrews shall refrain from using the 
``Scuttle'' command when two payloads remain at a given post. Aircrews 
will ensure that a 1,000 yard (914 m) safety buffer, visually clear of 
marine mammals, is maintained around each post as is done during active 
search operations.
    (viii) Aircrews shall only leave posts with unexploded charges in 
the event of a sonobuoy malfunction, an aircraft system malfunction, or 
when an aircraft must immediately depart the area due to issues such as 
fuel constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (ix) The navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (3) Mitigation for Demolitions (DEMOs) and Mine Countermeasure (MCM) 
Training (Up to 20 lb).
    (i) Exclusion Zones--Explosive charges shall not be detonated if a 
marine mammal is detected within 700 yards (640 m) of the detonation 
site.
    (ii) Pre-Exercise Surveys--For MCM training activities, the Navy 
shall conduct a pre-exercise survey within 30 minutes prior to the 
commencement of the scheduled explosive event. The survey may be 
conducted from the surface, by divers, and/or from the air. If a marine 
mammal is detected within the survey area, the exercise shall be 
suspended until the animal voluntarily leaves the area.
    (iii) Post-Exercise Surveys--Surveys within the same radius shall 
also be conducted within 30 minutes after the completion of the 
explosive event.
    (iv) Reporting--Any evidence of a marine mammal that may have been 
injured or killed by the action shall be reported immediately to NMFS.
    (v) Mine Laying Training--Though mine laying training operations 
involve aerial drops of inert training shapes on floating targets, 
measures 1, 2, and 3 for Demolitions and Mine countermeasures will apply 
to mine laying training. To the maximum extent feasible, the Navy shall 
retrieve inert mine shapes dropped during Mine Laying Training.
    (4) Mitigation for SINKEX, GUNEX, MISSILEX, and BOMBEX. (i) All 
weapons firing shall be conducted during the period 1 hour after 
official sunrise to 30 minutes before official sunset.
    (ii) Extensive range clearance operations shall be conducted in the 
hours prior to commencement of the exercise.
    (iii) An exclusion zone with a radius of 1.0 nm (1.85 km) shall be 
established around each target. An additional buffer of 0.5 nm (0.93 km) 
shall be added to account for errors, target drift, and animal 
movements. Additionally, a safety zone, which extends out an additional 
0.5 nm (0.93 km), shall be surveyed. Together, the zones extend out 2 nm 
(3.7 km) from the target.
    (iv) A series of surveillance over-flights shall be conducted within 
the exclusion and the safety zones, prior to and during the exercise, 
when feasible. Survey protocol would be as follows:
    (A) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's

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Search and Rescue (SAR) Tactical Aid (TACAID).
    (B) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for lookouts.
    (C) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring shall be maintained throughout the exercise. 
Potential assets include sonobuoys, which can be utilized to detect any 
vocalizing marine mammals in the vicinity of the exercise. The sonobuoys 
shall be re-seeded as necessary throughout the exercise. Additionally, 
passive sonar onboard submarines may be utilized to detect any 
vocalizing marine mammals in the area. The Officer Conducting the 
Exercise (OCE) shall be informed of any aural detection of marine 
mammals and would include this information in the determination of when 
it is safe to commence the exercise.
    (D) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence two hours prior to the first 
firing.
    (E) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing would 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (F) If a marine mammal observed within the exclusion zone is diving, 
firing shall be delayed until the animal is re-sighted outside the 
exclusion zone, or 30 minutes has elapsed.
    (G) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any marine mammals. If marine 
mammals are sighted within the exclusion zone, the OCE would be 
notified, and the procedure described in paragraph (a)(4)(iv)(F) of this 
section would be followed.
    (H) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for two hours, or until sunset, to 
verify that no marine mammals were harmed.
    (v) Aerial surveillance would be conducted using helicopters or 
other aircraft based on necessity and availability. These aircraft shall 
be capable of (and shall, to the extent practicable) flying at the slow 
safe speeds necessary to enable viewing of marine mammals with 
unobstructed, or minimally obstructed, downward and outward visibility. 
The Navy may cancel the exclusion and safety zone surveys in the event 
that a mechanical problem, emergency search and rescue, or other similar 
and unexpected event preempts the use of one of the aircraft onsite for 
the exercise.
    (vi) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a Beaufort Sea State of 4 or above, the 
Navy shall utilize additional aircraft (conducting tight search 
patterns), if available, to increase survey efforts within the zones.
    (vii) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (viii) In the unlikely event that any marine mammals are observed to 
be harmed in the area, a detailed description of the animal shall be 
documented, the location noted, and if possible, photos taken. This 
information would be provided to NMFS.
    (b) [Reserved]



Sec. 216.175  Requirements for monitoring and reporting.

    (a) As outlined in the HRC Stranding Communication Plan, the Holder 
of the Authorization must notify NMFS immediately (or as soon as 
clearance procedures allow) if the specified activity identified in 
Sec. 216.170(c) is thought to have resulted in the mortality or injury 
of any marine mammals, or in any take of marine mammals not identified 
in Sec. 216.172(c).
    (b) The Holder of the Letter of Authorization must conduct all 
monitoring and required reporting under the Letter of Authorization, 
including abiding by the HRC Monitoring Plan.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Plan (ICMP) in 2009. This planning and

[[Page 90]]

adaptive management tool shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection across Range 
Complexes.
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy 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). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual HRC Monitoring Plan Report--The Navy shall submit a 
report annually on October 1 describing the implementation and results 
(through August 1 of the same year) of the HRC Monitoring Plan, 
described in Sec. 216.175(b). Data collection methods will be 
standardized across range complexes to allow for comparison in different 
geographic locations. Although additional information will be gathered, 
the marine mammal observers (MMOs) collecting marine mammal data 
pursuant to the HRC Monitoring Plan shall, at a minimum, provide the 
same marine mammal observation data required in Sec. 216.175(f)(1).
    The HRC Monitoring Plan Report may be provided to NMFS within a 
larger report that includes the required Monitoring Plan Reports from 
multiple Range Complexes.
    (f) Annual HRC Exercise Report--The Navy shall submit an Annual HRC 
Exercise Report on October 1 of every year (covering data gathered 
through August 1 (or completion of RIMPAC if later than Aug 1) of the 
same year). This report shall contain information identified in 
subsections 216.175(f)(1)-(f)(5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for Major Training Exercises (MTEs, which 
include RIMPAC, USWEX, and Multi Strike Group) conducted in the HRC:
    (i) Exercise Information (for each MTE):
    (A) Exercise designator.
    (B) Date that exercise began and ended.
    (C) Location.
    (D) Number and types of active sources used in the exercise.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (G) Total hours of observation by watchstanders.
    (H) Total hours of all active sonar source operation.
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)).
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each MTE).
    (A) Location of sighting.
    (B) Species (if not possible--indication of whale/dolphin/pinniped).
    (C) Number of individuals.
    (D) Calves observed (y/n).
    (E) Initial Detection Sensor.
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG).
    (G) Length of time observers maintained visual contact with marine 
mammal.

[[Page 91]]

    (H) Wave height (in feet).
    (I) Visibility.
    (J) Sonar source in use (y/n).
    (K) Indication of whether animal is <200yd, 200-500yd, 500-1000yd, 
1000-2000yd, or 2000yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section.
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
    (M) If source in use (see paragraph (f)(1)(ii)(J) of this section) 
is hullmounted, true bearing of animal from ship, true direction of 
ship's travel, and estimation of animal's motion relative to ship 
(opening, closing, parallel).
    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the MTEs) 
of the effectiveness of mitigation measures designed to avoid exposing 
to mid-frequency sonar. This evaluation shall identify the specific 
observations that support any conclusions the Navy reaches about the 
effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from both MTEs and non-major training 
exercises (i.e., unit-level exercises, such as TRACKEXs):
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.)).
    (ii) Total hours (from December 15 through April 15) of hullmounted 
active sonar operation occurring in the dense humpback areas plus a 5-km 
buffer, but not including the Pacific Missile Range Facility. The Navy 
shall work with NMFS to develop the exact boundaries of this area.
    (iii) Total estimated annual hours of hull-mounted active sonar 
operation conducted in Humpback Whale Cautionary area between December 
15 and April 15.
    (iv) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than RIMPAC, USWEX, or Multi-
Strike Group Exercises) training exercises utilizing hull-mounted sonar. 
The report shall present an annual (and seasonal, where practicable) 
depiction of non-major training exercises geographically across the HRC. 
The Navy shall include (in the HRC annual report) a brief annual 
progress update on the status of development until an agreed-upon (with 
NMFS) method has been developed and implemented.
    (3) SINKEXs--This section shall include the following information 
for each SINKEX completed that year:
    (i) Exercise information (gathered for each SINKEX):
    (A) Location.
    (B) Date and time exercise began and ended.
    (C) Total hours of observation by watchstanders before, during, and 
after exercise.
    (D) Total number and types of rounds expended/explosives detonated.
    (E) Number and types of passive acoustic sources used in exercise.
    (F) Total hours of passive acoustic search time.
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise.
    (H) Wave height in feet (high, low and average during exercise).
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted.
    (ii) Individual marine mammal observation (by Navy lookouts) 
information (gathered for each marine mammal sighting):
    (A) Location of sighting.
    (B) Species (if not possible, indicate whale, dolphin or pinniped).
    (C) Number of individuals.
    (D) Whether calves were observed.
    (E) Initial detection sensor.
    (F) Length of time observers maintained visual contact with marine 
mammal.
    (G) Wave height.
    (H) Visibility.

[[Page 92]]

    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after.
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (91 m for SINKEX in HRC);
    (2) The required exclusion zone (1 nm for SINKEX in HRC);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in HRC); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer would indicate if < 91 m, from 91 m--1 nm, from 
1 nm--2 nm, and  2 nm.
    (K) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (4) IEER Summary--This section shall include an annual summary of 
the following IEER information:
    (i) Total number of IEER events conducted in the HRC.
    (ii) Total expended/detonated rounds (buoys).
    (iii) Total number of self-scuttled IEER rounds.
    (5) Explosives Summary--To the extent practicable, the Navy will 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they will provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (i) Total annual number of each type of explosive exercises (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the HRC.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any major exercise. 
(RIMPAC, USWEX, or Multi Strike Group) indicating:
    (1) Location of the exercise.
    (2) Beginning and end dates of the exercise.
    (3) Type of exercise (e.g., RIMPAC, USWEX, or Multi Strike Group).
    (h) HRC 5-yr Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW and explosive exercises for which 
annual reports are required (Annual HRC Exercise Reports and HRC 
Monitoring Plan Reports). This report will be submitted at the end of 
the fourth year of the rule (November 2012), covering activities that 
have occurred through June 1, 2012.
    (i) Comprehensive National ASW Report--By June 2014, the Navy shall 
submit a draft Comprehensive National Report that analyzes, compares, 
and summarizes the active sonar data gathered (through January 1, 2014) 
from the watchstanders in accordance with the Monitoring Plans for the 
HRC, the Atlantic Fleet Active Sonar Training, the Southern California 
(SOCAL) Range Complex, the Marianas Range Complex, the Northwest 
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare 
Training Range.
    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the HRC Comprehensive Report, 
the draft National ASW report, the Annual HRC Exercise Report, or the 
Annual HRC Monitoring Plan Report (or the multi-Range Complex Annual 
Monitoring Plan Report, if that is how the Navy chooses to submit the 
information) if submitted within 3 months of receipt. These reports will 
be considered final after the Navy has addressed NMFS'

[[Page 93]]

comments or provided the requested information, or three months after 
the submittal of the draft if NMFS does not comment by then.
    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 216.176  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. 216.103 of this 
chapter) conducting the activity identified in Sec. 216.170(c) (the 
U.S. Navy) must apply for and obtain either an initial Letter of 
Authorization in accordance with Sec. 216.177 or a renewal under Sec. 
216.178.



Sec. 216.177  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.178.
    (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. 216.178  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. Sec. 216.106 and 
216.177 for the activity identified in Sec. 216.170(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.176 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 (by the dates indicated in these regulations) of 
the monitoring reports required under Sec. 216.175(c) through (j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 216.174 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.177, were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under this Sec. 216.106 and Sec. 216.178 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. Review and comment on renewals of Letters of Authorization 
are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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. Below are some of 
the possible sources of new data that could contribute to the decision 
to modify the mitigation or monitoring measures:

[[Page 94]]

    (1) Results from the Navy's monitoring from the previous year 
(either from the HRC or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec. 216.175(q)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 216.175(d)).
    (4) Results from specific stranding investigations (either from the 
HRC Study Area or other locations, and involving coincident MFAS/HFAS or 
explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study. (6) Results from 
general marine mammal and sound research (funded by the Navy (or 
otherwise).



Sec. 216.179  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 
and 216.177 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.178, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.172(c), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.177 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 Q_Taking of Marine Mammals Incidental to Navy Operations of 

Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA 

                              sonar) Sonar

    Source: 72 FR 46890, Aug. 21, 2007, unless otherwise noted.

    Effective Date Note: At 72 FR 46890, Aug. 21, 2007, subpart Q, 
consisting of Sec. Sec. 216.180 through 216.191 were added, effective 
Aug. 16, 2007 through Aug. 15, 2012.



Sec. 216.180  Specified activity.

    Regulations in this subpart apply only to the incidental taking of 
those marine mammal species specified in paragraph (b) of this section 
by the U.S. Navy, Department of Defense, while engaged in the operation 
of no more than four SURTASS LFA sonar systems conducting active sonar 
operations, in areas specified in paragraph (a) of this section. The 
authorized activities, as specified in a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.188, include the transmission of low 
frequency sounds from the SURTASS LFA sonar and the transmission of high 
frequency sounds from the mitigation sonar described in Sec. 216.185 
during training, testing, and routine military operations of SURTASS LFA 
sonar.
    (a) With the exception of those areas specified in Sec. 216.183(d), 
the incidental taking by harassment may be authorized in the areas 
(biomes, provinces, and subprovinces) described in Longhurst (1998), as 
specified in a Letter of Authorization.
    (b) The incidental take, by Level A and Level B harassment, of 
marine mammals from the activity identified in this section is limited 
to the following species and species groups:
    (1) Mysticete whales--blue (Balaenoptera musculus), fin 
(Balaenoptera physalus), minke (Balaenoptera acutorostrata), Bryde's 
(Balaenoptera edeni), sei (Balaenoptera borealis), humpback (Megaptera 
novaeangliae), North Atlantic right (Eubalaena glacialis), North Pacific 
right (Eubalena japonica) southern right (Eubalaena australis), pygmy 
right (Capera marginata), bowhead (Balaena

[[Page 95]]

mysticetus), and gray (Eschrichtius robustus) whales.
    (2) Odontocete whales--harbor porpoise (Phocoena phocoena), 
spectacled porpoise (Phocoena dioptrica), beluga (Dephinapterus leucas), 
Stenella spp., Risso's dolphin (Grampus griseus), rough-toothed dolphin 
(Steno bredanensis), Fraser's dolphin (Lagenodelphis hosei), northern 
right-whale dolphin (Lissodelphis borealis), southern right whale 
dolphin (Lissodelphis peronii), short-beaked common dolphin (Delphius 
delphis), long-beaked common dolphin (Delphinus capensis), very long-
beaked common dolphin (Delphinus tropicalis), Lagenorhynchus spp., 
Cephalorhynchus spp., bottlenose dolphin (Tursiops truncatus), Dall's 
porpoise (Phocoenoides dalli), melon-headed whale (Peponocephala spp.), 
beaked whales (Berardius spp., Hyperoodon spp., Mesoplodon spp., 
Cuvier's beaked whale (Ziphius cavirostris), Shepard's beaked whale 
(Tasmacetus shepherdi), Longman's beaked whale (Indopacetus pacificus), 
killer whale (Orcinus orca), false killer whale (Pseudorca crassidens), 
pygmy killer whale (Feresa attenuata), sperm whale (Physeter 
macrocephalus), dwarf and pygmy sperm whales (Kogia simus and K. 
breviceps), and short-finned and long-finned pilot whales (Globicephala 
macrorhynchus and G. melas).
    (3) Pinnipeds--hooded seal (Cystophora cristata), harbor seal (Phoca 
vitulina), spotted seal (P. largha), ribbon seal (P. fasciata), gray 
seal (Halichoerus grypus), elephant seal (Mirounga angustirostris and M. 
leonina), Hawaiian monk seal (Monachus schauinslandi), Mediterranean 
monk seal (Monachus monachus), northern fur seal (Callorhinus ursinus), 
southern fur seal (Arctocephalus spp.), harp seal (Phoca groenlandica), 
Galapagos sea lion (Zalophus californianus wollebaeki), Japanese sea 
lion (Zalophus californianus japonicus), Steller sea lion (Eumetopias 
jubatus), California sea lion (Zalophus californianus), Australian sea 
lion (Neophoca cinerea), New Zealand sea lion (Phocarctos hookeri), and 
South American sea lion (Otaria flavescens).



Sec. 216.181  Effective dates.

    Regulations in this subpart are effective from August 16, 2007 
through August 15, 2012.



Sec. 216.182  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.188, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment within the areas described in Sec. 216.180(a), 
provided the activity is in compliance with all terms, conditions, and 
requirements of these regulations and the appropriate Letter of 
Authorization.
    (b) The activities identified in Sec. 216.180 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals and their habitat.



Sec. 216.183  Prohibitions.

    No person in connection with the activities described in Sec. 
216.180 shall:
    (a) Take any marine mammal not specified in Sec. 216.180(b);
    (b) Take any marine mammal specified in Sec. 216.180(b) other than 
by incidental, unintentional Level A and Level B harassment;
    (c) Take a marine mammal specified in Sec. 216.180(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of the regulations in this subpart or any Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.188.



Sec. 216.184  Mitigation.

    The activity identified in Sec. 216.180(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.180, the mitigation measures described in this 
section and in any Letter of Authorization issued under Sec. Sec. 
216.106 and 216.188 must be implemented.
    (a) Through monitoring described under Sec. 216.185, the Holder of 
a Letter of Authorization must act to ensure, to

[[Page 96]]

the greatest extent practicable, that no marine mammal is subjected to a 
sound pressure level of 180 dB or greater.
    (b) If a marine mammal is detected within or about to enter the 
mitigation zone (the area subjected to sound pressure levels of 180 dB 
or greater plus the 1 km (0.54 nm) buffer zone extending beyond the 180-
dB zone), SURTASS LFA sonar transmissions will be immediately delayed or 
suspended. Transmissions will not resume earlier than 15 minutes after:
    (1) All marine mammals have left the area of the mitigation and 
buffer zones; and
    (2) There is no further detection of any marine mammal within the 
mitigation and buffer zones as determined by the visual and/or passive 
or active acoustic monitoring described in Sec. 216.185.
    (c) The high-frequency marine mammal monitoring sonar (HF/M3) 
described in Sec. 216.185 will be ramped-up slowly to operating levels 
over a period of no less than 5 minutes:
    (1) At least 30 minutes prior to any SURTASS LFA sonar 
transmissions;
    (2) Prior to any SURTASS LFA sonar calibrations or testings that are 
not part of regular SURTASS LFA sonar transmissions described in 
paragraph (c)(1) of this section; and
    (3) Anytime after the HF/M3 source has been powered down for more 
than 2 minutes.
    (d) The HF/M3 sound pressure level will not be increased once a 
marine mammal is detected; ramp-up may resume once marine mammals are no 
longer detected.
    (e) The Holder of a Letter of Authorization will not operate the 
SURTASS LFA sonar, such that:
    (1) the SURTASS LFA sonar sound field exceeds 180 dB (re 1 
microPa(rms)) at a distance less than 12 nautical miles (nm) (22 
kilometers (km)) from any coastline, including offshore islands;
    (2) the SURTASS LFA sonar sound field exceeds 180 db (re 1 
microPa(rms)) at a distance of 1 km (0.5 nm) seaward of the outer 
perimeter of any offshore biologically important area designated in 
216.184(f) during the biologically important period specified.
    (f) The following areas have been designated by NMFS as Offshore 
Biologically Important Areas (OBIAs) for marine mammals (by season if 
appropriate):

------------------------------------------------------------------------
                                                            Months of
         Name of area              Location of area         importance
------------------------------------------------------------------------
(1) 200-m isobath North        From 28[deg] N. to        Year-round.
 American East Coast.           50[deg] N., west of
                                40[deg] W.
(2) Antarctic Convergence      30[deg] E. to 80[deg] E.  October 1-March
 Zone.                          to 45[deg]; 80[deg] E.    31.
                                to 150[deg] E. to
                                55[deg]; S. 150[deg] E.
                                to 50[deg] W. to
                                60[deg] S.; 50[deg] W.
                                to 30[deg] E. to
                                50[deg] S.
(3) Costa Rica Dome..........  Centered at 9[deg] N.     Year-round.
                                and 88[deg] W.
(4) Hawaiian Islands Humpback  Centered at 21[deg] N.    November 1
 Whale National Marine          and 157[deg] 30' W.       through May 1.
 Sanctuary-Penguin Bank.
(5) Cordell Bank National      Boundaries in accordance  Year-round.
 Marine Sanctuary.              with 15 CFR 922.110.
(6) Gulf of the Farallones     Boundaries in accordance  Year-round.
 National Marine Sanctuary.     with 15 CFR 922.80.
(7) Monterey Bay National      Boundaries in accordance  Year-round.
 Marine Sanctuary.              with 15 CFR 922.30.
(8) Olympic Coast National     Boundaries within 23 nm   December
 Marine Sanctuary.              of the coast from         January, March
                                47[deg]07[min] N. to      and May.
                                48[deg]30[min] N.
                                latitude.
(9) Flower Garden Banks        Boundaries in accordance  Year-round.
 National Marine Sanctuary.     with 15 CFR 922.120.
(10) The Gully...............  44[deg]13[min] N.,        Year-round.
                                59[deg]06[min] W. to
                                43[deg]47[min] N.;
                                58[deg]35[min] W. to
                                43[deg]35[min] N.;
                                58[deg]35[min] W. to
                                43[deg]35[min] N.;
                                59[deg]08[min] W. to
                                44[deg]06[min] N.;
                                59[deg]20[min] W.
------------------------------------------------------------------------



Sec. 216.185  Requirements for monitoring.

    (a) In order to mitigate the taking of marine mammals by SURTASS LFA 
sonar to the greatest extent practicable, the Holder of a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.188 must:
    (1) Conduct visual monitoring from the ship's bridge during all 
daylight hours (30 minutes before sunrise until 30 minutes after 
sunset);

[[Page 97]]

    (2) Use low frequency passive SURTASS sonar to listen for vocalizing 
marine mammals; and
    (3) Use the HF/M3 (high frequency) sonar developed to locate and 
track marine mammals in relation to the SURTASS LFA sonar vessel and the 
sound field produced by the SURTASS LFA sonar source array.
    (b) Monitoring under paragraph (a) of this section must:
    (1) Commence at least 30 minutes before the first SURTASS LFA sonar 
transmission;
    (2) Continue between transmission pings; and
    (3) Continue either for at least 15 minutes after completion of the 
SURTASS LFA sonar transmission exercise, or, if marine mammals are 
exhibiting unusual changes in behavioral patterns, for a period of time 
until behavior patterns return to normal or conditions prevent continued 
observations;
    (c) Holders of Letters of Authorization for activities described in 
Sec. 216.180 are required to cooperate with the National Marine 
Fisheries Service and any other federal agency for monitoring the 
impacts of the activity on marine mammals.
    (d) Holders of Letters of Authorization must designate qualified on-
site individuals to conduct the mitigation, monitoring and reporting 
activities specified in the Letter of Authorization.
    (e) Holders of Letters of Authorization must conduct all monitoring 
required under the Letter of Authorization.



Sec. 216.186  Requirements for reporting.

    (a) The Holder of the Letter of Authorization must submit quarterly 
mission reports to the Director, Office of Protected Resources, NMFS, no 
later than 30 days after the end of each quarter beginning on the date 
of effectiveness of a Letter of Authorization or as specified in the 
appropriate Letter of Authorization. Each quarterly mission report will 
include all active-mode missions completed during that quarter. At a 
minimum, each classified mission report must contain the following 
information:
    (1) Dates, times, and location of each vessel during each mission;
    (2) Information on sonar transmissions during each mission;
    (3) Results of the marine mammal monitoring program specified in the 
Letter of Authorization; and
    (4) Estimates of the percentages of marine mammal species and stocks 
affected (both for the quarter and cumulatively for the year) covered by 
the Letter of Authorization.
    (b) The Holder of a Letter of Authorization must submit an annual 
report to the Director, Office of Protected Resources, NMFS, no later 
than 45 days after the expiration of a Letter of Authorization. This 
report must contain all the information required by the Letter of 
Authorization.
    (c) A final comprehensive report must be submitted to the Director, 
Office of Protected Resources, NMFS at least 240 days prior to 
expiration of these regulations. In addition to containing all the 
information required by any final year Letter of Authorization, this 
report must contain an unclassified analysis of new passive sonar 
technologies and an assessment of whether such a system is feasible as 
an alternative to SURTASS LFA sonar.



Sec. 216.187  Applications for Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these 
regulations, the U.S. Navy authority conducting the activity identified 
in Sec. 216.180 must apply for and obtain a Letter of Authorization in 
accordance with Sec. 216.106.
    (b) The application for a Letter of Authorization must be submitted 
to the Director, Office of Protected Resources, NMFS, at least 60 days 
before the date that either the vessel is scheduled to begin conducting 
SURTASS LFA sonar operations or the previous Letter of Authorization is 
scheduled to expire.
    (c) All applications for a Letter of Authorization must include the 
following information:
    (1) The date(s), duration, and the area(s) where the vessel's 
activity will occur;

[[Page 98]]

    (2) The species and/or stock(s) of marine mammals likely to be found 
within each area;
    (3) The type of incidental taking authorization requested (i.e., 
take by Level A and/or Level B harassment);
    (4) The estimated percentage of marine mammal species/stocks 
potentially affected in each area for the 12-month period of 
effectiveness of the Letter of Authorization; and
    (5) The means of accomplishing the necessary monitoring and 
reporting that will result in increased knowledge of the species and the 
level of taking or impacts on marine mammal populations.
    (d) The National Marine Fisheries Service will review an application 
for a Letter of Authorization in accordance with Sec. 216.104(b) and, 
if adequate and complete, issue a Letter of Authorization.



Sec. 216.188  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked will be 
valid for a period of time not to exceed one year, but may be renewed 
annually subject to annual renewal conditions in Sec. 216.189.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Authorized geographic areas for incidental takings;
    (3) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking, their habitat, and the 
availability of the species for subsistence uses; and
    (4) Requirements for monitoring and reporting incidental takes.
    (c) Issuance of each Letter of Authorization will be based on a 
determination that the total number of marine mammals taken by the 
activity specified in Sec. 216.180 as a whole will have no more than a 
negligible impact on the species or stocks of affected marine mammal(s), 
and that the total taking will not have an unmitigable adverse impact on 
the availability of species or stocks of marine mammals for taking for 
subsistence uses.
    (d) Notice of issuance or denial of an application for a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.189  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued for the activity identified in 
Sec. 216.180 may be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.187 will be undertaken and that 
there will not be a substantial modification to the described activity, 
mitigation or monitoring undertaken during the upcoming season;
    (2) Notification to NMFS of the information identified in Sec. 
216.187(c), including the planned geographic area(s), and anticipated 
duration of each SURTASS LFA sonar operation;
    (3) Timely receipt of the monitoring reports required under Sec. 
216.185, which have been reviewed by NMFS and determined to be 
acceptable;
    (4) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. Sec. 216.184 and 216.185 and the 
previous Letter of Authorization were undertaken and will be undertaken 
during the upcoming annual period of validity of a renewed Letter of 
Authorization; and
    (5) A determination by NMFS that the number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact on 
the species or stock of affected marine mammal(s), and that the total 
taking will not have an unmitigable adverse impact on the availability 
of species or stocks of marine mammals for taking for subsistence uses.
    (b) If a request for a renewal of a Letter of Authorization 
indicates that a substantial modification to the described work, 
mitigation or monitoring will occur, or if NMFS proposes a substantial 
modification to the Letter of Authorization, NMFS will provide a period 
of 30 days for public review and comment on the proposed modification. 
Amending the areas for upcoming SURTASS LFA sonar operations is not 
considered a substantial modification to the Letter of Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization

[[Page 99]]

will be published in the Federal Register within 30 days of a 
determination.



Sec. 216.190  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantial modification (including withdrawal or suspension) to a 
Letter of Authorization subject to the provisions of this subpart shall 
be made by NMFS until after notification and an opportunity for public 
comment has been provided. For purposes of this paragraph, a renewal of 
a Letter of Authorization, without modification, except for the period 
of validity and a listing of planned operating areas, or for moving the 
authorized SURTASS LFA sonar system from one ship to another, is not 
considered a substantial modification.
    (b) If the National Marine Fisheries Service determines that an 
emergency exists that poses a significant risk to the well-being of the 
species or stocks of marine mammals specified in Sec. 216.180(b), a 
Letter of Authorization may be substantially modified without prior 
notice and opportunity for public comment. Notification will be 
published in the Federal Register within 30 days of the action.



Sec. 216.191  Designation of Offshore Biologically Important Marine Mammal 

Areas.

    (a) Offshore biologically important areas for marine mammals may be 
nominated under this paragraph by the National Marine Fisheries Service 
or by members of the public.
    (b) Proponents must petition NMFS by requesting an area be added to 
the list of offshore biologically important areas in Sec. 216.184(f) 
and submitting the following information:
    (1) Geographic region proposed for consideration (including 
geographic boundaries);
    (2) A list of marine mammal species or stocks within the proposed 
geographic region;
    (3) Whether the proposal is for year-round designation or seasonal, 
and if seasonal, months of years for proposed designation;
    (4) Detailed information on the biology of marine mammals within the 
area, including estimated population size, distribution, density, 
status, and the principal biological activity during the proposed period 
of designation sufficient for NMFS to make a preliminary determination 
that the area is biologically important for marine mammals; and
    (5) Detailed information on the area with regard to its importance 
for feeding, breeding, or migration for those species of marine mammals 
that have the potential to be affected by low frequency sounds;
    (c) Areas within 12 nm (22 km) of any coastline, including offshore 
islands, or within non-operating areas for SURTASS LFA sonar are not 
eligible for consideration.
    (d) If a petition does not contain sufficient information for the 
National Marine Fisheries Service to proceed, NMFS will determine 
whether the nominated area warrants further study. If so, NMFS will 
begin a scientific review of the area.
    (e)(1) If through a petition or independently, NMFS makes a 
preliminary determination that an offshore area is biologically 
important for marine mammals and is not located within a previously 
designated area, NMFS will publish a Federal Register notice proposing 
to add the area to Sec. 216.184(f) and solicit public comment.
    (2) The National Marine Fisheries Service will publish its final 
determination in the Federal Register.



   Subpart R_Taking of Marine Mammals Incidental to Construction and 

  Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea

    Source: 71 FR 11322, Mar. 7, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 11322, Mar. 7, 2006, subpart R, 
consisting of Sec. Sec. 216.200 through 216.210 were added, effective 
Apr. 6, 2006 through Apr. 6, 2011.



Sec. 216.200  Specified activity and specified geographical region.

    Regulations in this subpart apply only to the incidental taking of 
those marine mammal species specified in paragraph (b) of this section 
by U.S.

[[Page 100]]

citizens engaged in oil and gas development activities in areas within 
state and/or Federal waters in the U.S. Beaufort Sea specified in 
paragraph (a) of this section. The authorized activities as specified in 
a Letter of Authorization issued under Sec. Sec. 216.106 and 216.208 
include, but may not be limited to, site construction, including ice 
road and pipeline construction, vessel and helicopter activity; and oil 
production activities, including ice road construction, and vessel and 
helicopter activity, but excluding seismic operations.
    (a)(1) Northstar Oil and Gas Development; and
    (2) [Reserved]
    (b) The incidental take by Level A harassment, Level B harassment or 
mortality of marine mammals under the activity identified in this 
section is limited to the following species: bowhead whale (Balaena 
mysticetus), gray whale (Eschrichtius robustus), beluga whale 
(Delphinapterus leucas), ringed seal (Phoca hispida), spotted seal 
(Phoca largha) and bearded seal (Erignathus barbatus).



Sec. 216.201  Effective dates.

    Regulations in this subpart are effective from April 6, 2006 through 
April 6, 2011.



Sec. 216.202  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.208, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment and mortality within the area described in Sec. 
216.200(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The activities identified in Sec. 216.200 must be conducted in 
a manner that minimizes, to the greatest extent practicable, any adverse 
impacts on marine mammals, their habitat, and on the availability of 
marine mammals for subsistence uses.



Sec. 216.203  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.200 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.208, no person in connection with the activities described in Sec. 
216.200 shall:
    (a) Take any marine mammal not specified in Sec. 216.200(b);
    (b) Take any marine mammal specified in Sec. 216.200(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.200(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. 216.106.



Sec. 216.204  Mitigation.

    The activity identified in Sec. 216.200(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.200, the mitigation measures contained in the 
Letter of Authorization issued under Sec. Sec. 216.106 and 216.208 must 
be utilized.



Sec. 216.205  Measures to ensure availability of species for subsistence uses.

    When applying for a Letter of Authorization pursuant to Sec. 
216.207, or a renewal of a Letter of Authorization pursuant to Sec. 
216.209, the applicant must submit a Plan of Cooperation that identifies 
what measures have been taken and/or will be taken to minimize any 
adverse effects on the availability of marine mammals for subsistence 
uses. A plan must include the following:
    (a) A statement that the applicant has notified and met with the 
affected subsistence communities to discuss proposed activities and to 
resolve potential conflicts regarding timing and methods of operation;
    (b) A description of what measures the applicant has taken and/or 
will take to ensure that oil development activities will not interfere 
with subsistence whaling or sealing;
    (c) What plans the applicant has to continue to meet with the 
affected

[[Page 101]]

communities to notify the communities of any changes in operation.



Sec. 216.206  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.208 for activities described in Sec. 216.200 
are required to cooperate with the National Marine Fisheries Service, 
and any other Federal, state or local agency monitoring the impacts of 
the activity on marine mammals. Unless specified otherwise in the Letter 
of Authorization, the Holder of the Letter of Authorization must notify 
the Administrator, Alaska Region, National Marine Fisheries Service, or 
his/her designee, by letter or telephone, at least 2 weeks prior to 
initiating new activities potentially involving the taking of marine 
mammals.
    (b) Holders of Letters of Authorization must designate qualified on-
site individuals, approved in advance by the National Marine Fisheries 
Service, to conduct the mitigation, monitoring and reporting activities 
specified in the Letter of Authorization issued pursuant to Sec. 
216.106 and Sec. 216.208.
    (c) Holders of Letters of Authorization must conduct all monitoring 
and/or research required under the Letter of Authorization.
    (d) Unless specified otherwise in the Letter of Authorization, the 
Holder of that Letter of Authorization must submit an annual report to 
the Director, Office of Protected Resources, National Marine Fisheries 
Service, no later than March 31 of the year following the conclusion of 
the previous open water monitoring season. This report must contain all 
information required by the Letter of Authorization.
    (e) A final annual comprehensive report must be submitted within the 
time period specified in the governing Letter of Authorization.
    (f) A final comprehensive report on all marine mammal monitoring and 
research conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 240 days prior to expiration of these 
regulations or 240 days after the expiration of these regulations if 
renewal of the regulations will not be requested.



Sec. 216.207  Applications for Letters of Authorization.

    (a) To incidentally take bowhead whales and other marine mammals 
pursuant to these regulations, the U.S. citizen (see definition at Sec. 
216.103) conducting the activity identified in Sec. 216.200 must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec. Sec. 216.106 and 216.208, or a renewal under Sec. 216.209.
    (b) The application for an initial Letter of Authorization must be 
submitted to the National Marine Fisheries Service at least 180 days 
before the activity is scheduled to begin.
    (c) Applications for initial Letters of Authorization must include 
all information items identified in Sec. 216.104(a).
    (d) NMFS will review an application for an initial Letter of 
Authorization in accordance with Sec. 216.104(b) and, if adequate and 
complete, will publish a notice of receipt of a request for incidental 
taking and a proposed amendment to Sec. 216.200(a). In conjunction with 
amending Sec. 216.200(a), the National Marine Fisheries Service will 
provide for public comment on the application for an initial Letter of 
Authorization.
    (e) Upon receipt of a complete application for an initial Letter of 
Authorization, and at its discretion, the National Marine Fisheries 
Service may submit the monitoring plan to members of a peer review panel 
for review and/or schedule a workshop to review the plan. Unless 
specified in the Letter of Authorization, the applicant must submit a 
final monitoring plan to the Assistant Administrator prior to the 
issuance of an initial Letter of Authorization.



Sec. 216.208  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.209.
    (b) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;

[[Page 102]]

    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting, including any 
requirements for the independent peer-review of proposed monitoring 
plans.
    (c) Issuance and renewal of each Letter of Authorization will be 
based on a determination that the number of marine mammals taken by the 
activity will be small, that the total number of marine mammals taken by 
the activity as a whole will have no more than a negligible impact on 
the species or stock of affected marine mammal(s), and will not have an 
unmitigable adverse impact on the availability of species or stocks of 
marine mammals for taking for subsistence uses.
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.209  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.208 for the activity identified in Sec. 216.200 will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 216.207 will 
be undertaken and that there will not be a substantial modification to 
the described work, mitigation or monitoring undertaken during the 
upcoming season;
    (2) Timely receipt of the monitoring reports required under Sec. 
216.205, and the Letter of Authorization issued under Sec. 216.208, 
which have been reviewed and accepted by the National Marine Fisheries 
Service, and of the Plan of Cooperation required under Sec. 216.205; 
and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec. 
216.204 and the Letter of Authorization issued under Sec. Sec. 216.106 
and 216.208, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.208 indicates that a substantial 
modification to the described work, mitigation or monitoring undertaken 
during the upcoming season will occur, the National Marine Fisheries 
Service will provide the public a minimum of 30 days for review and 
comment on the request. Review and comment on renewals of Letters of 
Authorization are restricted to:
    (1) New cited information and data that indicates that the 
determinations made in this document are in need of reconsideration,
    (2) The Plan of Cooperation, and
    (3) The proposed monitoring plan.
    (c) A notice of issuance or denial of a Renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.210  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by the National Marine Fisheries Service, issued 
pursuant to Sec. Sec. 216.106 and 216.208 and subject to the provisions 
of this subpart shall be made until after notification and an 
opportunity for public comment has been provided. For purposes of this 
paragraph, a renewal of a Letter of Authorization under Sec. 216.209, 
without modification (except for the period of validity), is not 
considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.200(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.208 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

[[Page 103]]



  Subpart S_Taking of Marine Mammals Incidental to Explosive Severance 

Activities Conducted During Offshore Structure Removal Operations on the 

           Outer Continental Shelf in the U.S. Gulf of Mexico

    Source: 73 FR 34889, June 19, 2008, unless otherwise noted.

    Effective Date Note: At 73 FR 34889, June 19, 2008, subpart S, 
consisting of Sec. Sec. 216.211 through 216.219 were added, effective 
July 21, 2008 through July 19, 2013.



Sec. 216.211  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammal species specified in paragraph (b) of this 
section by U.S. citizens engaged in explosive severance activities 
conducted during offshore oil and gas structure removal activities in 
areas within state and Federal waters in the U.S. Gulf of Mexico 
adjacent to the coasts of Texas, Mississippi, Louisiana, Alabama, and 
Florida. The incidental, but not intentional, taking of marine mammals 
by U.S. citizens holding a Letter of Authorization issued pursuant to 
Sec. 216.218 is permitted during the course of severing pilings, well 
conductors, and related supporting structures, and other activities 
related to the removal of the oil and gas structure.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to a total of 5 
bottlenose dolphin, one Atlantic spotted dolphin, and one pantropical 
spotted dolphin by Level A harassment over the period of validity of 
these regulations; and Level B harassment of the following species 
annually: 227 bottlenose dolphins, 65 Atlantic spotted dolphins, 77 
pantropical spotted dolphins, 27 Clymene dolphins, 12 rough-toothed 
dolphins, 14 striped dolphins, 15 melon-headed whales, 10 pilot whales, 
5 spinner dolphins, 3 Risso's dolphins, and 2 sperm whales.



Sec. 216.212  Effective dates.

    Regulations in this subpart are effective from July 21, 2008 until 
July 19, 2013.



Sec. 216.213  Permissible methods of taking.

    The Holder of a Letter of Authorization issued pursuant to Sec. 
216.218, may incidentally, but not intentionally, take marine mammals by 
harassment within the area described in Sec. 216.211(a), provided the 
activity is in compliance with all terms, conditions, and requirements 
of these regulations and the appropriate Letter of Authorization.



Sec. 216.214  Prohibitions.

    No person in connection with the activities described in Sec. 
216.211(a) shall:
    (a) Take any marine mammal not specified in Sec. 216.211(b);
    (b) Take any marine mammal specified in Sec. 216.211(b) in a manner 
or amount greater than described therein;
    (c) Take any marine mammal specified in Sec. 216.211(b) if NMFS 
determines that the taking of marine mammals incidental to the 
activities described in Sec. 216.211(a) is having more than a 
negligible impact on the species or stocks of marine mammals;
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
pursuant to Sec. Sec. 216.106 and 216.218;
    (e) Take any marine mammal in violation of these regulations by 
using a charge with a weight greater than 500 lbs (227 kg);
    (f) Take any marine mammal when conditions preclude conducting 
mitigation and monitoring requirements of these regulations or a Letter 
of Authorization.



Sec. 216.215  Definitions, terms, and criteria

    (a) Definitions. (1) Below-mud-line or BML means that the explosives 
are detonated below the water-mud interface, either inside or outside a 
pipe, other structure or cable.
    (2) Above-mud-line or AML means that the explosives are detonated in 
the water column above the water-mud interface, either inside or outside 
a pipe, other structure or cable.
    (3) Multiple charge detonation means any explosive configuration 
where more than one charge is required in a single detonation event.

[[Page 104]]

    (4) Scenario means an alpha-numeric designation provided to describe 
charge size, activity location, and target design employed in order to 
determine the appropriate marine mammal mitigation/monitoring measures.
    (b) Terms (1) Impact zone (required for all scenarios) means the 
area around a decommissioning target measured by the horizontal radius, 
in which a marine mammal could be affected by the pressure or acoustic 
energy released during the detonation of an explosive-severance charge.
    (2) Predetonation survey (required for all scenarios) means any 
marine mammal monitoring survey (e.g., surface, aerial, or acoustic) 
conducted prior to the detonation of any explosive severance tool.
    (3) Postdetonation survey (required for all scenarios) means any 
marine mammal monitoring survey (e.g., surface, aerial, or post-post-
detonation aerial) conducted after the detonation event occurs.
    (4) Waiting period (required for all scenarios) means the amount of 
time detonation operations must hold before the requisite monitoring 
survey(s) can be repeated.
    (5) Company observer (for scenarios A1-A4 only) means trained 
company observers authorized to perform marine mammal detection surveys 
only for ``very-small'' blasting scenarios A1-A4.
    (6) NMFS observer (for scenarios B1-E4) means observers trained and 
approved by an instructor with experience as a NMFS Platform Removal 
Observer Program trainer. NMFS observers are required to perform marine 
mammal detection surveys for all detonation scenarios with the exception 
of scenarios A1-A4. Two NMFS observers will be assigned to each 
operation for detection survey duties, except mitigation-scenarios C2, 
C4, D2, D4, E2, and E4 require a minimum of three NMFS observers for the 
simultaneous surface, aerial, and acoustic surveys.
    (c) Criteria--(1) Blasting category parameters and associated 
severance scenarios. To determine the appropriate marine mammal 
mitigation and monitoring requirements in Sec. Sec. 216.218 and 
216.219, holders of Letters of Authorization for activities described in 
Sec. 216.211(a) of this subpart must determine, from Table 1 in Sec. 
216.217(b)(1), the appropriate explosive severance mitigation/monitoring 
scenario to follow for the blasting category, species-delineation zone, 
and charge configuration for their activity.
    (2) [Reserved]



Sec. 216.216  Mitigation.

    (a) The activity identified in Sec. 216.211(a) must be conducted in 
a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitats. When conducting operations 
identified in Sec. 216.211(a), all mitigation measures contained in 
this subpart and in the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.218 must be implemented. When using 
explosives, the following mitigation measures must be carried out:
    (1)(i) If marine mammals are observed within (or about to enter) the 
marine mammal impact zone identified in Table 1 in Sec. 216.217(b)(1) 
column 5 for the relevant charge range and configuration (i.e., BML or 
AML) for the activity, detonation must be delayed until the marine 
mammal(s) are outside that zone;
    (ii) Pre-detonation surveys shall not begin prior to sunrise and 
detonations shall not occur if the post-detonation survey cannot be 
concluded prior to sunset;
    (iii) Whenever weather or sea conditions preclude adequate aerial, 
shipboard or subsurface marine mammal monitoring as determined by the 
trained observer, detonations must be delayed until conditions improve 
sufficiently for marine mammal monitoring to be undertaken or resumed;
    (iv) Whenever the weather or sea conditions prevent implementation 
of the aerial survey monitoring required under Sec. 216.217(c)(2), the 
aerial survey must be repeated prior to detonation of charges; and
    (v) Multiple charge detonations must be staggered at an interval of 
0.9 sec (900 msec) between blasts.
    (2) [Reserved]
    (b) If a marine mammal is found seriously injured, or dead, the 
explosive severance activity will immediately cease and the holder of 
the Letter of

[[Page 105]]

Authorization, designee or the designated lead observer will contact the 
Minerals Management Service and the Regional Administrator, National 
Marine Fisheries Service' Southeast Regional Office, or designee at the 
earliest opportunity. Procedures and monitoring methods will be reviewed 
and, if necessary, appropriate changes made to the mitigation and 
monitoring measures prior to conducting the next detonation to avoid 
future injury or mortality takings.
    (c) Any mitigation measures proposed to be contained in a Letter of 
Authorization that are not specified in this subpart, or not considered 
an emergency requirement under Sec. 216.219(d), will first be subject 
to notice and comment through publication in the Federal Register, as 
provided in Sec. 216.219(c).



Sec. 216.217  Requirements for monitoring and reporting.

    (a) Holders of Letters of Authorization issued for activities 
described in Sec. 216.211(a) are required to cooperate with the 
National Marine Fisheries Service, and any other Federal, state or local 
agency with regulatory authority over the offshore oil-and-gas 
activities for the purpose of monitoring the impacts of the activity on 
marine mammals.
    (b)(1) Table 1 summarizes the required mitigation and monitoring 
survey modes, duration and zones for all blasting scenarios of marine 
mammal impact zones for implementation of surface and aerial monitoring 
requirements depending upon charge weight and severance scenario.
    (2) Holders of Letters of Authorization must fully comply with the 
relevant mitigation and monitoring program for the explosive-severance 
activity described in subparagraph (c) of this paragraph that 
corresponds to the holder of the Letter of Authorization's blast 
scenario shown in Table 1.

[[Page 106]]



                  Table 1. Blast Categories, Mitigation Scenarios, Survey and Time Requirements For All Explosive Severance Scenarios.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                                         Post
                                Configuration     Species                  Impact    Pre Det    Pre Det   Pre Det  Post Det  Post Det  Post Det  Waiting
      Blasting Category          (Charge wt/    Delineation   Mitgation     Zone     Surface    Aerial   Acoustic   Surface   Aerial    Aerial    Period
                                 placement)        Zone       Scenario     Radius     Survey    Survey    Survey    Survey    Survey    Survey    (min)
                                                                                      (min)      (min)     (min)     (min)     (min)   (Yes/No)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   A1          261 m      60         N/A       N/A       30        N/A       No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Very-                          (0-10 lb)       Slope (200
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small                          AML             Shelf (<200   A3          293 m      60         N/A       N/A       30        N/A       No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (0-5 lb)        Slope (200
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   B1          373 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Small                          (10- Shelf (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   B3          522 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (5-  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   C1          631 m      90         30        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Standard                       (20- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   C3          829 m      90         45        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (20- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   D1          941 m      120        45        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Large                          (80- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   D3          1,126 m    120        60        N/A       N/A       30        No        30
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (80- Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               BML             Shelf (<200   E1          1,500 m    150        90        N/A       N/A       45        No        45
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
Specialty                      (20  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                               AML             Shelf (<200   E3          1,528 m    150        90        N/A       N/A       45        No        45
                                                m)
------------------------------------------------------------------------           ---------------------------------------------------------------------
                               (20  Slope (200                ft)
                                                m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Severance of subsea structures that do not penetrate the sea surface will follow the mitigation scenario for above mudline (AML) detonations even if
  charges are placed below mudline.


[[Page 107]]

    (c) Holders of Letters of Authorization must ensure that the 
following monitoring programs are conducted as appropriate for the 
required monitoring scenario.
    (1) Surface monitoring survey. A surface monitoring survey must be 
conducted for the length of time that corresponds to the relevant 
explosive severance scenario. Surface monitoring surveys are to be 
conducted from the highest vantage point and/or other location(s) that 
provide the best, clear view of the entire impact zone. These vantage 
points may be on the structure being removed or proximal surface vessels 
(i.e., crewboats, derrick barges, etc.). Surface surveys are restricted 
to daylight hours only, and the monitoring will cease if the designated 
lead observer determines that weather or marine conditions are not 
adequate for visual observations.
    (2) Aerial monitoring survey. Aerial surveys are required for all 
explosive severance scenarios except monitoring scenarios A1-A4. Aerial 
monitoring surveys are to be conducted from helicopters running standard 
low-altitude search patterns over the extent of the impact zone that 
corresponds to the appropriate explosive severance scenario. Aerial 
surveys will be restricted to daylight hours only (defined as ``legal 
sunrise'' to ``legal sunset''), and cannot begin until the requisite 
surface monitoring survey has been completed. Aerial surveys will cease 
if the designated lead observer determines that weather or marine 
conditions are not adequate for visual observations, or when the pilot/
removal supervisor determines that helicopter operations must be 
suspended.
    (3) Acoustic monitoring survey.
    (i) Acoustic monitoring surveys are required to be conducted on all 
Standard, Large, and Specialty blasting scenarios conducted at slope 
(200 m (656 ft)) locations (i.e., scenarios C2, C4, D2, D4, 
E2, and E4).
    (ii) Persons conducting acoustic surveys will be required to comply 
with NMFS-approved passive acoustic monitoring protocols and use 
approved devices and technicians.
    (iii) Acoustic surveys will be run concurrent with requisite pre-
detonation surveys, beginning with the surface observations and 
concluding at the finish of the aerial surveys when the detonation(s) is 
allowed to proceed.
    (4) Post-detonation surface monitoring survey. A 30-minute post-
detonation surface survey must be conducted by the trained company 
observer for scenarios A1 - A4 immediately upon conclusion of the 
detonation.
    (5) Post-detonation aerial monitoring survey. For scenarios B1-D4, a 
30-minute aerial survey must be conducted immediately upon conclusion of 
the detonation. For scenarios E1-E4, a 45-minute aerial survey must be 
conducted immediately upon conclusion of the detonation.
    (6) Post-post-detonation aerial monitoring survey. Post-post-
detonation aerial monitoring surveys must be conducted for scenarios C4, 
D2, D4, E2 and E4 within 2-7 days after detonation activities conclude, 
by either helicopter or fixed-wing aircraft. Observations are to start 
at the removal site and proceed leeward and outward of wind and current 
movement. Any distressed, shocked, injured or dead marine mammals will 
be noted in the survey report, and if possible, tracked and collected 
after notifying the National Marine Fisheries Service within the time 
requirements stated in Sec. 216.217(f).
    (7) If unforeseen conditions or events occur during an explosive 
severance operation that may necessitate additional monitoring not 
specified in this paragraph, the designated NMFS lead observer will 
contact the appropriate National Marine Fisheries Service and Minerals 
Management Service personnel as detailed in the Letter of Authorization 
for additional guidance.
    (d) Holders of Letters of Authorization must conduct all monitoring 
and research required under the Letter of Authorization. Any monitoring 
or research measures proposed to be contained in a Letter of 
Authorization that are not specified in this subpart or not considered 
an emergency requirement under Sec. 216.218(d), will first be subject 
to public notice and comment through publication in the Federal 
Register, as provided by Sec. 216.219(c).
    (e) Reporting (1) A report summarizing the results of structure 
removal

[[Page 108]]

activities, mitigation measures, monitoring efforts, and other 
information as required by a Letter of Authorization, must be submitted 
to the Director, Office of Protected Resources, within 30 days of 
completion of the removal activity.
    (2) The National Marine Fisheries Service will accept the NMFS 
observer report as the activity report required by subparagraph (1) of 
this paragraph if all requirements for reporting contained in the Letter 
of Authorization are provided to the NMFS observer before the NMFS 
observer's report is submitted to the PROP Manager.
    (3) If a marine mammal is found shocked, injured, or dead, the 
Holder of the Letter of Authorization, or designee, must report the 
incident to the National Marine Fisheries Service Southeast Regional 
Office, at the earliest opportunity.



Sec. 216.218  Letters of Authorization.

    (a) To incidentally take marine mammal species listed in Sec. 
216.211(b) pursuant to these regulations, each company or contractor 
responsible for the removal of the structure or an industry-related 
seafloor obstruction in the area specified in Sec. 216.211(a) must 
apply for and obtain either a Letter of Authorization in accordance with 
Sec. 216.106 or a renewal under Sec. 216.219(a).
    (b) An application for a Letter of Authorization must be submitted 
to the National Marine Fisheries Service at least 30 days before the 
explosive removal activity is scheduled to begin.
    (c) Issuance of a Letter of Authorization and renewal of a Letter of 
Authorization under Sec. 216.219(a) will be based on a determination by 
the National Marine Fisheries Service that the number of each species or 
stock of cetaceans taken annually by the activity will be small and that 
the total taking over the 5-year period will have a negligible impact on 
the species or stock of affected marine mammal(s).
    (d) A Letter of Authorization may be renewed annually, subject to 
conditions in Sec. 216.219(a).
    (e) A Letter of Authorization for activities in this subpart will 
not be valid after the effective period of this subpart.
    (f) A copy of the Letter of Authorization must be in the possession 
of the persons conducting the activity specified in Sec. 216.211(a) 
that may involve incidental takings of marine mammals.
    (g) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.219  Renewal and modifications of Letters of Authorization.

    (a) A Letter of Authorization issued for the activity identified in 
Sec. 216.211(a) will be renewed annually upon:
    (1) Receipt of an application for renewal of a Letter of 
Authorization under Sec. 216.218.
    (2) Timely receipt of the report(s) required under Sec. 216.217(f), 
which have been reviewed by the Assistant Administrator and determined 
to be acceptable; and
    (3) A determination that the required mitigation, monitoring and 
reporting measures have been undertaken.
    (b) Notice of issuance of a renewal of the Letter of Authorization 
will be published in the Federal Register within 30 days of issuance.
    (c) In addition to complying with the provisions of Sec. 216.106, 
except as provided in paragraph (d) of this section, no substantive 
modification, including a request for a variance in the mitigation or 
monitoring requirements in this subpart or a withdrawal or suspension of 
the Letter of Authorization issued pursuant to Sec. 216.106 and subject 
to the provisions of this subpart, shall be made until after notice and 
an opportunity for public comment. For purposes of this paragraph, 
renewal of a Letter of Authorization under Sec. 216.219, without 
modification other than an effective date change, is not considered a 
substantive modification.
    (d) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.211(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.118, or 
renewed pursuant to this paragraph may be modified without prior notice 
and opportunity for public comment. A notice will be published in the 
Federal Register subsequent to the action.

[[Page 109]]

Subpart T [Reserved]



 Subpart U_Taking of Marine Mammals Incidental to Rocket Launches from 

              the Kodiak Launch Complex, Kodiak Island, AK

    Source: 71 FR 4308, Jan. 26, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 4308, Jan. 26, 2006, subpart U, 
consisting of Sec. Sec. 216.230 through 216.237 were added, effective 
Feb. 27, 2006 through Feb. 28, 2011.



Sec. 216.230  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of marine mammals specified in paragraph (b) of this section by U.S. 
citizens engaged in rocket launch activities (up to nine launches per 
year) at the Kodiak Launch Complex on Kodiak Island, Alaska.
    (b) The incidental take of marine mammals under the activity 
identified in paragraph (a) of this section is limited to Steller sea 
lions (Eumetopius jubatus) and Pacific harbor seals (Phoca vitulina 
richardsi).



Sec. 216.231  Effective dates.

    Regulations in this subpart are effective from February 27, 2006 
through February 28, 2011.



Sec. 216.232  Permissible methods of taking.

    (a) Under a Letter of Authorization issued pursuant to Sec. 
216.106, the Alaska Aerospace Development Corporation and its 
contractors, may incidentally, but not intentionally, take Steller sea 
lions by Level B harassment, take adult Pacific harbor seals by Level B 
harassment, and take harbor seal pups by Level B or Level A harassment 
or mortality, in the course of conducting missile launch activities 
within the area described in Sec. 216.230(a), provided all terms, 
conditions, and requirements of these regulations and such Letter of 
Authorization are complied with.
    (b) The activities identified in Sec. 216.230(a) must be conducted 
in a manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammals and their habitat.



Sec. 216.233  Prohibitions.

    The following activities are prohibited:
    (a) The taking of a marine mammal that is other than unintentional.
    (b) The violation of, or failure to comply with, the terms, 
conditions, and requirements of this subpart or a Letter of 
Authorization issued under Sec. 216.106.
    (c) The incidental taking of any marine mammal of a species not 
specified, or in a manner not authorized, in this subpart.



Sec. 216.234  Mitigation, monitoring and reporting.

    (a) No more than five launches may occur between May 15 and June 30 
within the 5-year period, and no more than 15 launches may occur between 
June 15 and September 30 within the 5-year period.
    (b) The holder of the Letter of Authorization must implement the 
following measures for all launches occurring from June through October:
    (1) Conduct five replicate fixed-wing aerial surveys of all hauled 
out Steller sea lions and harbor seals at Ugak Island, each flown at low 
tide (weather permitting), using a minimum flight altitude of 500 feet 
(152 meters) above sea level, with an approach no closer than 0.25 mi 
(0.40 km) to the haulout, and conducted a day prior to, directly 
following, and for three consecutive days after a launch.
    (2) At least one biologist observer will accompany the pilot during 
all aerial surveys.
    (3) Data gathered during aerial surveys will be gathered visually 
and through the use of a camera with a zoom lens.
    (4) A real-time video record of Steller sea lion reactions to launch 
noise will be made using a video camera system placed upon the Ugak 
Island haulout before a scheduled launch and then retrieved after the 
launch.
    (5) Sound intensities and frequencies of rocket motor noise will be 
recorded before, during, and after a launch by a sound level monitor 
mounted upon the

[[Page 110]]

Ugak Island haulout and set to highlight sounds greater than 70 dBA. 
Monitors will be installed one day or more before a launch and retrieved 
within one day post-launch.
    (c) A trial effort to obtain real-time video records of harbor seals 
hauled out at the eastern end of the northern side of the island and 
their reactions to launch noise will be made as soon as practicable. A 
brief report summarizing the efficacy of this monitoring effort should 
be included in the standard monitoring reports for that launch and year. 
If valuable data may be gathered using this method, real-time video 
records of harbor seals reactions to launch noise will be made before 
launches scheduled between May 15 and June 30, and between June 30 and 
September 30 if the equipment is not being used to record Steller sea 
lions, and then retrieved after the launches.
    (d) Security flights immediately associated with rocket launches may 
not approach closer than 0.25 mile (0.4 km) to occupied pinniped haulout 
sites on Ugak Island or fly lower than 1000 ft (305 m) when the plane is 
closer than 0.5 miles (0.8 km) from occupied pinniped sites on Ugak 
Island unless indications of human presence or activity warrant closer 
inspection of the area to assure that national security interests are 
protected in accordance with the law.
    (e) When pinnipeds are present at haulouts during security 
overflights associated with rocket launches, and when practicable, a 
member of the flight crew will note and record whether pinnipeds 
appeared to flush as a result of the overflight and estimate a number.
    (f) The holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service and any other 
Federal, state or local agency monitoring the impacts of the activity on 
marine mammals. The holder must notify the NMFS Alaska Assistant 
Regional Administrator for Protected Resources and to the NMFS Division 
of Permits, Conservation, and Education, Office of Protected Resources 
at least 2 weeks prior to commencing monitoring activities.
    (g) Activities related to the monitoring described in paragraph (a) 
of this section or in the Letter of Authorization may be conducted 
without a separate scientific research permit.
    (h) In coordination and compliance with the Alaska Aerospace 
Development Corporation, the National Marine Fisheries Service may place 
an observer on Kodiak or Ugak Islands for any marine mammal monitoring 
activity prior to, during, or after a missile launch to monitor impacts 
on marine mammals, provided observers are not within the calculated 
danger zone of the rocket's flight path during a launch.
    (i) The holder of the Letter of Authorization must comply with any 
other applicable state or federal permits, regulations, and 
environmental monitoring agreements set up with other agencies.
    (j) The National Marine Fisheries Service must be informed 
immediately of any proposed changes or deletions to any portions of the 
monitoring requirements.
    (k) The holder of the Letter of Authorization must implement the 
following reporting requirements:
    (1) If indications of injurious or lethal take are recorded, the 
NMFS Alaska Assistant Regional Administrator for Protected Resources and 
the NMFS Division of Permits, Conservation, and Education, Office of 
Protected Resources, or their designees, will be contacted within 48 
hours. In consultation with the National Marine Fisheries Service, 
launch procedure, mitigation measures, and monitoring methods must be 
reviewed and appropriate changes made prior to the next launch.
    (2) Data from monitoring activities will be reported to the National 
Marine Fisheries Service within 90 days following cessation of field 
activities for each launch. After the trial effort to videotape harbor 
seals at the eastern end of the north side of Ugak island, a summary of 
the effectiveness of the videotaping will be included in the associated 
launch report.
    (3) An interim technical report must be submitted to the NMFS Alaska 
Assistant Regional Administrator for Protected Resources and to the NMFS 
Division of Permits, Conservation, and

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Education, Office of Protected Resources at least 60 days prior to the 
expiration of each annual Letter of Authorization. This report must 
contain the following information:
    (i) Timing and nature of launch operations and monitoring flights;
    (ii) A summary of marine mammal behavioral observations in relation 
to recorded acoustic stimuli and other known visual or audio stimuli;
    (iii) An estimate of the amount and nature of all takes.
    (iv) A copy of all videotapes containing sea lion and harbor seal 
footage, and selected illustrative 35 mm or digital pictures, cross-
referenced to the appropriate launches and acoustic measurements.
    (4) A draft comprehensive technical report will be submitted to the 
NMFS Alaska Assistant Regional Administrator for Protected Resources and 
to the NMFS Division of Permits, Conservation, and Education, Office of 
Protected Resources, 180 days prior to the expiration of these 
regulations with full documentation of the methods, results, and 
interpretation of all monitoring tasks for launches during all expired 
Letters of Authorization, plus preliminary information for launches 
during the first 6 months of the final Letter of Authorization.
    (5) A revised final comprehensive technical report, including all 
monitoring results during the entire period of the Letter of 
Authorization, will be due 90 days after the end of the period of 
effectiveness of these regulations.
    (6) The interim and draft comprehensive technical reports will be 
subject to review and comment by the National Marine Fisheries Service. 
Any recommendations made by the National Marine Fisheries Service must 
be addressed in the final comprehensive technical report prior to 
acceptance by the National Marine Fisheries Service.



Sec. 216.235  Letter of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter of Authorization, but 
a Letter of Authorization may not be valid beyond the effective period 
of the regulations.
    (b) A Letter of Authorization will set forth:
    (1) Species of marine mammals authorized to be taken;
    (2) Permissible methods of incidental taking;
    (3) Specified geographical region;
    (4) Means of effecting the least practicable adverse impact on the 
species of marine mammals authorized for taking and its habitat; and
    (5) Requirements for monitoring and reporting incidental takes.
    (c) Issuance of a Letter of Authorization will be based on a 
determination that the number of marine mammals taken by the activity 
will be small, and that the total taking by the activity as a whole will 
have no more than a negligible impact on the affected species or stocks 
of marine mammal(s).
    (d) Notice of issuance or denial of a Letter of Authorization will 
be published in the Federal Register within 30 days of a determination.



Sec. 216.236  Renewal of a Letter of Authorization.

    (a) A Letter of Authorization for the activity identified in Sec. 
216.230(a) will be renewed upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application for a Letter of Authorization 
submitted under Sec. 216.235 will be undertaken and that there will not 
be a substantial modification to the described activity, mitigation or 
monitoring undertaken during the upcoming season;
    (2) Timely receipt of and acceptance by the National Marine 
Fisheries Service of the monitoring reports required under Sec. 
216.234;
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under 
Sec. Sec. 216.232 and 216.234 and the Letter of Authorization were 
undertaken and will be undertaken during the upcoming period of validity 
of a renewed Letter of Authorization; and
    (4) A determination that the number of marine mammals taken by the 
activity will be small and that the total taking by the activity will 
have no more than a negligible impact on the affected species or stocks 
of marine mammal(s), and that the level of taking will be consistent 
with the findings

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made for the total taking allowable under these regulations.
    (b) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register within 30 days 
of a determination.



Sec. 216.237  Modifications to a Letter of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to the provisions of this 
subpart shall be made by the National Marine Fisheries Service until 
after notification and an opportunity for public comment has been 
provided. A renewal of a Letter of Authorization under Sec. 216.236 
without modification is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.230(b), a Letter of 
Authorization may be substantively modified without prior notification 
and an opportunity for public comment. Notification will be published in 
the Federal Register within 30 days of the action.



  Subpart V_Taking and Importing Marine Mammals; U.S. Navy's Atlantic 

                   Fleet Active Sonar Training (AFAST)

    Source: 74 FR 4876, Jan. 27, 2009, unless otherwise noted.

    Effective Date Note: At 74 FR 4876, Jan. 27, 2009, subpart V was 
added, effective Jan. 22, 2009 through Jan. 22, 2014.



Sec. 216.240  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 AFAST Study Area, which extends east from the 
Atlantic Coast of the U.S. to 45[deg] W. long. and south from the 
Atlantic and Gulf of Mexico Coasts to approximately 23[deg] N. lat., 
excluding the Bahamas (see Figure 1-1 in the Navy's Application).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the use of the following mid-frequency active 
sonar (MFAS) sources, high frequency active sonar (HFAS) sources, or 
explosive sonobuoys for U.S. Navy anti-submarine warfare (ASW), mine 
warfare (MIW) training, maintenance, or research, development, testing, 
and evaluation (RDT&E) in the amounts indicated below (10 percent):
    (1) AN/SQS-53 (hull-mounted sonar)--up to 16070 hours over the 
course of 5 years (an average of 3214 hours per year).
    (2) AN/SQS-56 (hull-mounted sonar)--up to 8420 hours over the course 
of 5 years (an average of 1684 hours per year).
    (3) AN/SQS-56 or 53 (hull mounted sonar in object detection mode)--
up to 1080 hours over the course of 5 years (an average of 216 hours per 
year).
    (4) AN/BQQ-10 or 5 (submarine sonar)--up to 49880 pings over the 
course of 5 years (an average of 9976 pings per year) (an average of 1 
ping per two hours during training events, 60 pings per hour for 
maintenance).
    (5) AN/AQS-22 or 13 (helicopter dipping sonar)--up to 14760 dips 
over the course of 5 years (an average of 2952 dips per year--10 pings 
per five-minute dip).
    (6) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 29265 sonobuoys over the course of 5 years (an average 
of 5853 sonobuoys per year).
    (7) MK-48 (heavyweight torpedoes)--up to 160 torpedoes over the 
course of 5 years (an average of 32 torpedoes per year).
    (8) MK-46 or 54 (lightweight torpedoes)--up to 120 torpedoes over 
the course of 5 years (an average of 24 torpedoes per year).
    (9) AN/SSQ-110A (IEER explosive sonobuoy) and AN/SSQ-125 (AEER sonar 
sonobuoy)--up to 4360 sonobuoys, between these 2 sources, over the 
course

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of 5 years (an average of 872 buoys per year).
    (10) AN/SQQ-32 (over the side mine-hunting sonar)--up to 22370 hours 
over the course of 5 years (an average of 4474 hours per year).
    (11) AN/SLQ-25 (NIXIE--towed countermeasure)--up to 1660 hours over 
the course of 5 years (an average of 332 hours per year).
    (12) AN/BQS-15 (submarine navigation)--up to 2250 hours over the 
course of 5 years (an average of 450 hours per year).
    (13) MK-1 or 2 or 3 or 4 (Submarine-fired Acoustic Device 
Countermeasure (ADC))--up to 1125 ADCs over the course of 5 years (an 
average of 225 ADCs per year).
    (14) Noise Acoustic Emitters (NAE--Sub-fired countermeasure)--up to 
635 NAEs over the course of 5 years (an average of 127 NAEs per year).



Sec. 216.241  Effective dates and definitions.

    (a) Regulations are effective January 22, 2009 through January 22, 
2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during a major training exercise (MTE) and involves any one of the 
following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs), unless of species of concern listed in Sec. 
216.241(b)(1)(ii) found dead or live on shore within a 2-day period and 
occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: beaked whale of any species, dwarf or pygmy 
sperm whales, melon-headed whales, pilot whales, right whales, humpback 
whales, sperm whales, blue whales, fin whales, or sei whales.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress as defined in Sec. 216.241(b)(3).
    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm nm (Atlantic Ocean) or 17 nm (Gulf of Mexico) of 
any live, in the water, animal involved in a USE.



Sec. 216.242  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.247, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 216.240(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified in Sec. 216.240(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. 216.240(c) is limited to the following species, by 
the identified method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
    (i) Mysticetes:
    (A) North Atlantic right whale (Eubalaena glacialis)--3330 (an 
average of 666 annually).
    (B) Humpback whale (Megaptera novaeangliae)--21010 (an average of 
4202 annually).
    (C) Minke whale (Balaenoptera acutorostrata)--2075 (an average of 
415 annually).
    (D) Sei whale (Balaenoptera borealis)--5285 (an average of 1057 
annually).
    (E) Fin whale (Balaenoptera physalus)--4410 (an average of 882 
annually).
    (F) Bryde's whale (Balaenoptera edeni)--180 (an average of 36 
annually).
    (G) Blue whale (Balaenoptera musculus)--4005 (an average of 801 
annually).
    (ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--48790 (an average of 9758 
annually).
    (B) Pygmy or dwarf sperm whales (Kogia breviceps or Kogia sima)--
21920 (an average of 4384 annually).
    (C) Beaked Whales (Cuvier's, True's, Gervais', Sowerby's, 
Blainville's, Northern bottlenose whale) (Ziphius cavirostris, 
Mesoplodon mirus, M. europaeus, M. bidens, M. densirostris,

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Hyperoodon ampullatus)--24535 (an average of 4907 annually).
    (D) Rough-toothed dolphin (Steno bredanensis)--13540 (an average of 
2708 annually).
    (E) Bottlenose dolphin (Tursiops truncatus)--3034010 (an average of 
606802 annually).
    (F) Pan-tropical dolphin (Stenella attenuata)--696530 (an average of 
139306 annually).
    (G) Atlantic spotted dolphin (Stenella frontalis)--1881805 (an 
average of 376361 annually).
    (H) Spinner dolphin (Stenella longirostris)--105775 (an average of 
21155 annually).
    (I) Clymene dolphin (Stenella clymene)--232190 (an average of 46438 
annually).
    (J) Striped dolphin (Stenella coeruleoalba)--873620 (an average of 
174274 annually).
    (K) Common dolphin (Delphinus spp.)--482300 (an average of 96460 
annually).
    (L) Fraser's dolphin (Lagenodelphis hosei)--1730 (an average of 346 
annually).
    (M) Risso's dolphin (Grampus griseus)--470375 (an average of 94075 
annually).
    (N) Atlantic white-sided dolphin (Lagenorhynchus acutus)--103255 (an 
average of 20651 annually).
    (O) White-beaked dophin (Lagenorhynchus albirostris)--17250 (an 
average of 3450 annually).
    (P) Melon-headed whale (Peponocephala electra)--8270 (an average of 
1654 annually).
    (Q) Pygmy killer whale (Feresa attenuata)--1400 (an average of 280 
annually).
    (R) False killer whale (Pseudorca crassidens)--2690 (an average of 
538 annually).
    (S) Killer whale (Orcinus orca)--2515 (an average of 503 annually).
    (T) Pilot whales (Short-finned pilot or long-finned) (Globicephala 
macrorynchus or G. melas)--636965 (an average of 127393 annually).
    (U) Harbor porpoise (Phocoena phocoena)--767405 (an average of 
153481 annually).
    (iii) Pinnipeds:
    (A) Gray seal (Halichoerus grypus)--39295 (an average of 7859 
annually).
    (B) Harbor seal (Phoca vitulina)--63295 (an average of 12659 
annually).
    (C) Hooded seal (Cystophora cristata)--78590 (an average of 15718 
annually).
    (D) Harp seal (Pagophilus groenlandica)--55010 (an average of 11002 
annually).
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed in Sec. 
216.242(c)(1)(ii)(C) over the course of the 5-year regulations.



Sec. 216.243  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.92 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.247, no person in connection with the activities described in Sec. 
216.240 may:
    (a) Take any marine mammal not specified in Sec. 216.242(c);
    (b) Take any marine mammal specified in Sec. 216.242(c) other than 
by incidental take as specified in Sec. 216.242(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 216.242(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. Sec. 216.106 and 216.247.



Sec. 216.244  Mitigation.

    (a) When conducting training activities identified in Sec. 
216.240(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.247 must be 
implemented. These mitigation measures include, but are not limited to:
    (1) Mitigation Measures for ASW and MIW training:
    (i) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training (MSAT) 
material prior to use of mid-frequency active sonar.
    (ii) All Commanding Officers, Executive Officers, and officers 
standing watch on the Bridge shall review the MSAT material prior to a 
training event employing the use of mid- or high-frequency active sonar.

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    (iii) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (NAVEDTRA, 12968-D).
    (iv) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, Lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (v) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine mammals 
are spotted.
    (vi) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (vii) All surface ships participating in ASW exercises shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
lookouts.
    (viii) Personnel on lookout and officers on watch on the bridge 
shall have at least one set of binoculars available for each person to 
aid in the detection of marine mammals.
    (ix) On surface vessels equipped with MFAS, pedestal mounted ``Big 
Eye'' (20 x 110) binoculars shall be present and in good working order.
    (x) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D). Surface lookouts should scan the water from 
the ship to the horizon and be responsible for all contacts in their 
sector. In searching the assigned sector, the lookout should always 
start at the forward part of the sector and search aft (toward the 
back). To search and scan, the lookout should hold the binoculars steady 
so the horizon is in the top third of the field of vision and direct the 
eyes just below the horizon. The lookout should scan for approximately 
five seconds in as many small steps as possible across the field seen 
through the binoculars. They should search the entire sector in 
approximately five-degree steps, pausing between steps for approximately 
five seconds to scan the field of view. At the end of the sector search, 
the glasses should be lowered to allow the eyes to rest for a few 
seconds, and then the lookout should search back across the sector with 
the naked eye.
    (xi) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook. At 
night, lookouts should not sweep the horizon with their eyes because 
this method is not effective when the vessel is moving. Lookouts should 
scan the horizon in a series of movements that should allow their eyes 
to come to periodic rests as they scan the sector. When visually 
searching at night, they should look a little to one side and out of the 
corners of their eyes, paying attention to the things on the outer edges 
of their field of vision.
    (xii) Personnel on lookout shall be responsible for informing the 
Officer of the Deck all objects or anomalies sighted in the water 
(regardless of the distance from the vessel) to the Officer of the Deck, 
since any object or disturbance (e.g., trash, periscope, surface 
disturbance, discoloration) in the water may be indicative of a threat 
to the vessel and its crew or indicative of a marine species that may 
need to be avoided as warranted.
    (xiii) Commanding Officers shall make use of marine mammal detection 
cues and information to limit interaction with marine mammals to the 
maximum extent possible consistent with safety of the ship.
    (xiv) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.
    (xv) Units shall use training lookouts to survey for marine mammals 
prior to commencement and during the use of active sonar.

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    (xvi) During operations involving sonar, personnel shall utilize all 
available sensor and optical systems (such as Night Vision Goggles) to 
aid in the detection of marine mammals.
    (xvii) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties.
    (xviii) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 
yards (182 m) of the sonobuoy.
    (xix) Marine mammal detections shall be reported immediately to 
assigned Aircraft Control Unit (if participating) for further 
dissemination to ships in the vicinity of the marine mammals. This 
action shall occur when it is reasonable to conclude that the course of 
the ship will likely close the distance between the ship and the 
detected marine mammal.
    (xx) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) the Navy shall ensure 
that sonar transmission levels are limited to at least 6 dB below normal 
operating levels if any detected marine mammals are within 1000 yards 
(914 m) of the sonar dome (the bow).
    (A) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the marine mammal has been 
seen to leave the area, has not been detected for 30 minutes, or the 
vessel has transited more than 2,000 yards (1828 m) beyond the location 
of the last detection.
    (B) Should a marine mammal be detected within or closing to inside 
457 m (500 yd) of the sonar dome, active sonar transmissions shall be 
limited to at least 10 dB below the equipment's normal operating level. 
Ships and submarines shall continue to limit maximum ping levels by this 
10-dB factor until the marine mammal has been seen to leave the area, 
has not been detected for 30 minutes, or the vessel has transited more 
than 2000 yards (1828 m) beyond the location of the last detection.
    (C) Should the marine mammal be detected within or closing to inside 
183 m (200 yd) of the sonar dome, active sonar transmissions shall 
cease. Sonar shall not resume until the marine mammal has been seen to 
leave the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yards (1828 m) beyond the location of the last 
detection.
    (D) If the need for power-down should arise as detailed in ``Safety 
Zones'' in paragraph (a)(1)(xx) of this section, Navy shall follow the 
requirements as though they were operating at 235 dB--the normal 
operating level (i.e., the first power-down shall be to 229 dB, 
regardless of at what level above 235 sonar was being operated).
    (xxi) Prior to startup or restart of active sonar, operators shall 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (xxii) Sonar levels (generally)--The Navy shall operate sonar at the 
lowest practicable level, not to exceed 235 dB, except as required to 
meet tactical training objectives.
    (xxiii) Helicopters shall observe/survey the vicinity of an ASW 
Operation for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (xxiv) Helicopters shall not dip their sonar within 200 yards (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yards of the helicopter dipping sonar (183 m) after pinging 
has begun.
    (xxv) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
activities involving active sonar.
    (xxvi) Night vision devices shall be available to all ships and air 
crews, for use as appropriate.
    (xxvii) Dolphin bowriding--If, after conducting an initial maneuver 
to avoid close quarters with dolphins, the ship concludes that dolphins 
are deliberately closing in on the ship to ride the vessel's bow wave, 
no further mitigation actions would be necessary because dolphins are 
out of the main transmission axis of the active sonar while in the 
shallow-wave area of the vessel bow.

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    (xxviii) TORPEXs conducted in the northeast North Atlantic right 
whale critical habitat (as designated in 50 CFR Part 226) shall 
implement the following measures.
    (A) All torpedo-firing operations shall take place during daylight 
hours.
    (B) During the conduct of each test, visual surveys of the test area 
shall be conducted by all vessels and aircraft involved in the exercise 
to detect the presence of marine mammals. Additionally, trained 
observers shall be placed on the submarine, spotter aircraft, and the 
surface support vessel. All participants shall report sightings of any 
marine mammals, including negative reports, prior to torpedo firings. 
Reporting requirements shall be outlined in the test plans and 
procedures written for each individual exercise, and shall be emphasized 
as part of pre-exercise briefings conducted with all participants.
    (C) Observers shall receive NMFS-approved training in field 
identification, distribution, and relevant behaviors of marine mammals 
of the western north Atlantic. Observers shall fill out Standard 
Sighting Forms and the data shall be housed at the Naval Undersea 
Warfare Center Division Newport (NUWCDIVNPT). Any sightings of North 
Atlantic right whales shall be immediately communicated to the Sighting 
Advisory System (SAS). All platforms shall have onboard a copy of:
    (1) The Guide to Marine Mammals and Turtles of the U.S. Atlantic and 
Gulf of Mexico (Wynne and Schwartz 1999);
    (2) The NMFS Critical Sightings Program placard;
    (3) Right Whales, Guidelines to Mariners placard.
    (D) In addition to the visual surveillance discussed above, 
dedicated aerial surveys shall be conducted utilizing a fixed-wing 
aircraft. An aircraft with an overhead wing (i.e., Cessna Skymaster or 
similar) shall be used to facilitate a clear view of the test area. Two 
trained observers, in addition to the pilot, shall be embarked on the 
aircraft. Surveys shall be conducted at an approximate altitude of 1000 
ft (305 m) flying parallel track lines at a separation of 1 nmi (1.85 
km), or as necessary to facilitate good visual coverage of the sea 
surface. While conducting surveillance, the aircraft shall maintain an 
approximate speed of 100 knots (185 km/hr). Since factors that affect 
visibility are highly dependent on the specific time of day of the 
survey, the flight operator will have the flexibility to adjust the 
flight pattern to reduce glare and improve visibility. The entire test 
site shall be surveyed initially, but once preparations are being made 
for an actual test launch, survey effort shall be concentrated over the 
vicinity of the individual test location. Further, for approximately ten 
minutes immediately prior to launch, the aircraft shall racetrack back 
and forth between the launch vessel and the target vessel.
    (E) Commencement of an individual torpedo test scenario shall not 
occur until observers from all vessels and aircraft involved in the 
exercise have reported to the Officer in Tactical Command (OTC) and the 
OTC has declared that the range is clear of marine mammals. Should 
marine mammals be present within or seen moving toward the test area, 
the test shall be either delayed or moved as required to avoid 
interference with the animals.
    (F) The TORPEX shall be suspended if the Beaufort Sea State exceeds 
3 or if visibility precludes safe operations.
    (G) Vessel speeds:
    (1) During transit through the northeastern North Atlantic right 
whale critical habitat, surface vessels and submarines shall maintain a 
speed of no more than 10 knots (19 km/hr) while not actively engaged in 
the exercise procedures.
    (2) During TORPEX operations, a firing vessel should, where 
feasible, not exceed 10 knots. When a submarine is used as a target, 
vessel speeds should, where feasible, not exceed 18 knots. However, on 
occasion, when surface vessels are used as targets, the vessel may 
exceed 18 kts in order to fully test the functionality of the torpedoes. 
This increased speed would occur for a short period of time (e.g., 10-15 
minutes) to evade the torpedo when fired upon.
    (H) In the event of an animal strike, or if an animal is discovered 
that appears to be in distress, the Navy shall immediately report the 
discovery through the appropriate Navy chain of Command.

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    (xxix) The Navy shall abide by the following additional measures:
    (A) The Navy shall avoid planning major exercises in the specified 
planning awareness areas (PAAs--as depicted in NMFS' ``Environmental 
Assessment of Mitigation Alternatives for Issuance of Incidental Take 
Regulations to U.S. Navy for Atlantic Fleet Active Sonar Training 
(AFAST)'') where feasible. Should national security require the conduct 
of more than four major exercises (C2X, JTFEX, SEASWITI, or similar 
scale event) in these areas (meaning all or a portion of the exercise) 
per year the Navy shall provide NMFS with prior notification and include 
the information in any associated after-action or monitoring reports.
    (B) The Navy shall conduct no more than one of the four above-
mentioned major exercises (COMPTUEX, JTFEX, SEASWITI or similar scale 
event) per year in the Gulf of Mexico to the extent operationally 
feasible. If national security needs require more than one major 
exercise to be conducted in the Gulf of Mexico PAAs, the Navy shall 
provide NMFS with prior notification and include the information in any 
associated after-action or monitoring reports.
    (C) The Navy shall include the PAAs in the Navy's Protective 
Measures Assessment Protocol (PMAP) (implemented by the Navy for use in 
the protection of the marine environment) for unit level situational 
awareness (i.e., exercises other than COMPTUEX, JTFEX, SEASWITI) and 
planning purposes.
    (D) Helicopter Dipping Sonar--Unless otherwise dictated by national 
security needs, the Navy shall minimize helicopter dipping sonar 
activities within the southeastern areas of North Atlantic right whale 
critical habitat (as designated in 50 CFR part 226) from November 15-
April 15.
    (E) Object Detection Exercises--The Navy shall implement the 
following measures regarding object detection activities in the 
southeastern areas of the North Atlantic right whale critical habitat:
    (1) The Navy shall reduce the time spent conducting object detection 
exercises in the NARW critical habitat;
    (2) Prior to conducting surface ship object detection exercises in 
the southeastern areas of the North Atlantic right whale critical 
habitat during the time of November 15-April 15, ships shall contact 
FACSFACJAX to obtain the latest North Atlantic right whale sighting 
information. FACSFACJAX shall advise ships of all reported whale 
sightings in the vicinity of the critical habitat and associated areas 
of concern (which extend 9 km (5 NM) seaward of the designated critical 
habitat boundaries). To the extent operationally feasible, ships shall 
avoid conducting training in the vicinity of recently sighted North 
Atlantic right whales. Ships shall maneuver to maintain at least 500 
yards separation from any observed whale, consistent with the safety of 
the ship.
    (xxx) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the AFAST Study Area'' 
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), to 
include the following measures:
    (A) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.241) occurs during a Major Training Exercise (MTE, 
including SEASWITI, IAC, Group Sails, JTFEX, or COMPTUEX) in the AFAST 
Study Area, the Navy shall implement the procedures described below.
    (1) The Navy shall implement a Shutdown (as defined Sec. 216.241) 
when advised by a NMFS Office of Protected Resources Headquarters Senior 
Official designated in the AFAST Stranding Communication Protocol that a 
USE involving live animals has been identified and that at least one 
live animal is located in the water. NMFS and Navy shall communicate, as 
needed, regarding the identification of the USE and the potential need 
to implement shutdown procedures.
    (2) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (3) If the Navy finds an injured or dead animal of any species other 
than

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North Atlantic right whale floating at sea during an MTE, the Navy shall 
notify NMFS immediately or as soon as operational security 
considerations allow. The Navy shall provide NMFS with species or 
description of the animal(s), the condition of the animal(s) including 
carcass condition (if the animal(s) is/are dead), location, time of 
first discovery, observed behaviors (if alive), and photo or video (if 
available). Based on the information provided, NMFS shall determine if, 
and advise the Navy whether a modified shutdown is appropriate on a 
case-by-case basis.
    (4) If the Navy finds an injured (or entangled) North Atlantic right 
whale floating at sea during an MTE, the Navy shall implement shutdown 
procedures (14 or 17 nm, as defined below) around the animal immediately 
(without waiting for notification from NMFS). The Navy shall then notify 
NMFS (pursuant to the AFAST Communication Protocol) immediately or as 
soon as operational security considerations allow. The Navy shall 
provide NMFS with species or description of the animal(s), the condition 
of the animal(s) including carcass condition (if the animal(s) is/are 
dead), location, time of first discovery, observed behaviors (if alive), 
and photo or video (if available). Subsequent to the discovery of the 
injured whale, any Navy platforms in the area shall report any North 
Atlantic right whale sightings to NMFS (or to a contact that can alert 
NMFS as soon as possible). Based on the information provided, NMFS may 
initiate/organize an aerial survey (by requesting the Navy's assistance 
pursuant to the memorandum of agreement (MOA) (see (a)(1)(xxx)(C) of 
this section) or by other available means) to see if other North 
Atlantic right whales are in the vicinity. Based on the information 
provided by the Navy and, if necessary, the outcome of the aerial 
surveys, NMFS shall determine whether a continued shutdown is 
appropriate on a case-by-case basis. Though it will be determined on a 
case-by-case basis after Navy/NMFS discussion of the situation, NMFS 
anticipates that the shutdown will continue within 14 or 17 nm of a 
live, injured/entangled North Atlantic right whale until the animal dies 
or has not been seen for at least 3 hours (either by NMFS staff 
attending the injured animal or Navy personnel monitoring the area 
around where the animal was last sighted).
    (5) If the Navy finds a dead North Atlantic right whale floating at 
sea during an MTE, the Navy shall notify NMFS (pursuant to AFAST 
Stranding Communication Protocol) immediately or as soon as operational 
security considerations allow. The Navy shall provide NMFS with species 
or description of the animal(s), the condition of the animal(s) 
(including carcass condition if the animal(s) is/are dead), location, 
time of first discovery, observed behaviors (if alive), and photo or 
video (if available). Subsequent to the discovery of the dead whale, if 
the Navy is operating sonar in the area they shall use increased 
vigilance (in looking for North Atlantic right whales) and all platforms 
in the area shall report sightings of North Atlantic right whales to 
NMFS as soon as possible. Based on the information provided, NMFS may 
initiate/organize an aerial survey (by requesting the Navy's assistance 
pursuant to the MOA (see (a)(1)(xxx)(C) of this section) or by other 
available means) to see if other North Atlantic right whales are in the 
vicinity. Based on the information provided by the Navy and, if 
necessary, the outcome of the aerial surveys, NMFS will determine 
whether any additional mitigation measures are necessary on a case-by-
case basis.
    (6) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) animals are seen repeatedly heading for 
the open ocean but turning back to shore, NMFS and the Navy should 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
training activities or explosive detonations, though farther than 14 or 
17 nm from the distressed animal(s), is likely decreasing the likelihood 
that the animals return to the open water. If so, NMFS and the Navy 
shall further coordinate to determine what measures are necessary to 
further minimize that likelihood and implement those measures as 
appropriate.

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    (B) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the AFAST 
Communication Protocol) regarding the location, number and types of 
acoustic/explosive sources, direction and speed of units using MFAS/
HFAS, and marine mammal sightings information associated with training 
activities occurring within 80 nm (148 km) and 72 hours prior to the USE 
event. Information not initially available regarding the 80 nm (148 km), 
72 hours, period prior to the event shall be provided as soon as it 
becomes available. The Navy shall provide NMFS investigative teams with 
additional relevant unclassified information as requested, if available.
    (C) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop a 
MOA, or other mechanism consistent with Federal fiscal law requirements 
(and all other applicable laws), that will establish a framework whereby 
the Navy can (and provide the Navy examples of how they can best) assist 
NMFS with stranding investigations in certain circumstances. This 
document shall be finalized in 2009 (unless NMFS notifies the Navy that 
a delay is needed).
    (2) Mitigation for IEER/AEER--The following are mitigation measures 
for use with Extended Echo Ranging/Improved Extended Echo Ranging (EER/
IEER) and Advanced Extended Echo Ranging given an explosive source 
generates the acoustic wave used in this sonobuoy.
    (i) Navy crews shall conduct visual reconnaissance of the drop area 
prior to laying their intended sonobuoy pattern. This search should be 
conducted below 500 yards (457 m) at a slow speed, if operationally 
feasible and weather conditions permit. In dual aircraft training 
activities, crews are allowed to conduct coordinated area clearances.
    (ii) For IEER (AN/SSQ-110A), Navy crews shall conduct a minimum of 
30 minutes of visual and acoustic monitoring of the search area prior to 
commanding the first post (source/receiver sonobuoy pair) detonation. 
This 30-minute observation period may include pattern deployment time.
    (iii) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 1,000 yards (914 m) of 
observed marine mammal activity, deploy the receiver ONLY and monitor 
while conducting a visual search. When marine mammals are no longer 
detected within 1,000 yards (914 m) of the intended post position, co-
locate the explosive source sonobuoy (AN/SSQ-110A) (source) with the 
receiver.
    (iv) When operationally feasible, Navy crews shall conduct 
continuous visual and aural monitoring of marine mammal activity. This 
is to include monitoring of own-aircraft sensors from first sensor 
placement to checking off station and out of communication range of 
these sensors.
    (v) Aural Detection: If the presence of marine mammals is detected 
aurally, then that should cue the aircrew to increase the diligence of 
their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the Navy crew may continue multi-static active 
search.
    (vi) Visual Detection:
    (A) If marine mammals are visually detected within 1,000 yards (914 
m) of the explosive source sonobuoy (AN/SSQ-110A) intended for use, then 
that payload shall not be detonated.
    (B) Navy Aircrews may utilize this post once the marine mammals have 
not been re-sighted for 30 minutes, or are observed to have moved 
outside the 1,000 yards (914 m) safety buffer.
    (C) Navy Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 1,000 yards (914 m) 
safety buffer.
    (vii) For IEER (AN/SSQ-110A), Navy Aircrews shall make every attempt 
to manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews shall ensure that a 1,000 yard 
(914 m) safety buffer, visually clear of marine mammals, is maintained 
around each post as is done during active search operations.

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    (viii) Navy Aircrews shall only leave posts with unexploded charges 
in the event of a sonobuoy malfunction, an aircraft system malfunction, 
or when an aircraft must immediately depart the area due to issues such 
as fuel constraints, inclement weather, and in-flight emergencies. In 
these cases, the sonobuoy will self-scuttle using the secondary or 
tertiary method.
    (ix) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that cannot be scuttled shall be reported 
as unexploded ordnance via voice communications while airborne, then 
upon landing via naval message.
    (x) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (3) Mitigation Measures Related to Vessel Transit and North Atlantic 
Right Whales:
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated below and within a 37 km (20 nm) arc (except as noted) 
of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (within this paragraph), the 
``southeast'' encompasses sea space from Charleston, South Carolina, 
southward to Sebastian Inlet, Florida, and from the coast seaward to 148 
km (80 NM) from shore. North Atlantic right whale critical habitat is 
the area from 31-15[deg] N. lat. to 30-15[deg] N. lat. extending from 
the coast out to 28 km (15 NM), and the area from 28-00[deg] N. lat. to 
30-15[deg] N. lat. from the coast out to 9 km (5 NM). All mitigation 
measures described here that apply to the critical habitat apply from 
November 15-April 15 and also apply to an associated area of concern 
which extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information needed to make informed decisions regarding safe speed 
and path of intended movement. Subs shall contact Commander, Submarine 
Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the critical habitat and an associated area of concern 
which extends 9 km (5 NM) seaward of the designated critical habitat 
boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.

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    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less then 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessel must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) Ships shall not transit through the critical habitat or 
associated area of concern in a North-South direction.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed. The Great South Channel critical habitat 
is defined by the following coordinates: 41-00[deg] N. lat., 69-05[deg] 
W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. lat., 68-
31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The Cape Cod 
Bay critical habitat is defined by the following coordinates: 42-
04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-15[deg] 
W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] N. lat., 
70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed so as to be able to avoid collisions with North Atlantic right 
whales and other marine mammals, and stop within a distance appropriate 
to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.

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Sec. 216.245  Requirements for monitoring and reporting.

    (a) As outlined in the AFAST Stranding Communication Plan, the Navy 
must notify NMFS immediately (or as soon as clearance procedures allow) 
if the specified activity identified in Sec. 216.240(c) is thought to 
have resulted in the mortality or injury of any marine mammals, or in 
any take of marine mammals not identified in Sec. 216.242(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the AFAST 
Monitoring Plan, which is incorporated herein by reference.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for AFAST and across 
Range Complexes
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy 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). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual AFAST Monitoring Plan Report--The Navy shall submit a 
report annually on October 1 describing the implementation and results 
(through August 1 of the same year) of the AFAST Monitoring Plan. Data 
collection methods will be standardized across range complexes to allow 
for comparison in different geographic locations. Although additional 
information will also be gathered, the marine mammal observers (MMOs) 
collecting marine mammal data pursuant to the AFAST Monitoring Plan 
shall, at a minimum, provide the same marine mammal observation data 
required in the data required in Sec. 216.245(f)(1). The AFAST 
Monitoring Plan Report may be provided to NMFS within a larger report 
that includes the required Monitoring Plan Reports from AFAST and 
multiple Range Complexes.
    (f) Annual AFAST Exercise Report--The Navy shall submit an Annual 
AFAST Exercise Report on October 1 of every year (covering data gathered 
through August 1 of the same year). This report shall contain 
information identified in subsections Sec. 216.245(f)(1) through 
(f)(5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for the major training exercises for reporting 
(MTERs), which include the Southeastern ASW Integrated Training 
Initiative (SEASWITI), Integrated ASW Course (IAC), Composite Training 
Unit Exercises (COMPTUEX), and Joint Task Force Exercises (JTFEX) 
conducted in the AFAST Study Area:
    (i) Exercise Information (for each MTER):
    (A) Exercise designator;
    (B) Date that exercise began and ended;
    (C) Location;
    (D) Number and types of active sources used in the exercise;
    (E) Number and types of passive acoustic sources used in exercise;
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise;

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    (G) Total hours of observation by watchstanders;
    (H) Total hours of all active sonar source operation;
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.));
    (J) Wave height (high, low, and average during exercise).
    (ii) Individual marine mammal sighting info (for each sighting in 
each MTER):
    (A) Location of sighting;
    (B) Species (if not possible--indication of whale/dolphin/pinniped);
    (C) Number of individuals;
    (D) Calves observed (y/n);
    (E) Initial Detection Sensor;
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of surface vessel, i.e., FFG, DDG, or 
CG);
    (G) Length of time observers maintained visual contact with marine 
mammal;
    (H) Wave height (in feet);
    (I) Visibility;
    (J) Sonar source in use (y/n);
    (K) Indication of whether animal is < 200 yd, 200-500 yd, 500-1000 
yd, 1000-2000 yd, or  2000 yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section;
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was;
    (M) If source in use (i.e., in paragraph (f)(1)(ii)(J) of this 
section) is hullmounted, true bearing of animal from ship, true 
direction of ship's travel, and estimation of animal's motion relative 
to ship (opening, closing, parallel);
    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.).
    (iii) An evaluation (based on data gathered during all of the MTERs) 
of the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to MFAS. This evaluation shall identify the specific 
observations that support any conclusions the Navy reaches about the 
effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from both MTERs and non-major training 
exercises:
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.)).
    (ii) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than MTERs) training exercises 
utilizing hull-mounted sonar. The report shall present an annual (and 
seasonal, where practicable) depiction of non-major training exercises 
geographically across the AFAST Study Area. To the extent practicable, 
this report will also include the total number of sonar hours (from 
helicopter dipping sonar and object detection exercises) conducted 
within the southern NARW critical habitat plus 5 nm buffer area. The 
Navy shall include (in the AFAST annual report) a brief annual progress 
update on the status of the development of an effective and unclassified 
method to report this information until an agreed-upon (with NMFS) 
method has been developed and implemented.
    (3) IEER/AEER Summary--This section shall include an annual summary 
of the following IEER and AEER information:
    (i) Total number of IEER and AEER events conducted in the AFAST 
Study Area;
    (ii) Total expended/detonated rounds (buoys);
    (iii) Total number of self-scuttled IEER rounds.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any MTER 
indicating:
    (1) Location of the exercise;
    (2) Beginning and end dates of the exercise;
    (3) Type of exercise (e.g., COMPTUEX or SEASWITI).

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    (h) AFAST 5-yr Comprehensive Report--The Navy shall submit to NMFS a 
draft report that analyzes and summarizes all of the multi-year marine 
mammal information gathered during ASW, MIW and IEER/AEER exercises for 
which annual reports are required (Annual AFAST Exercise Reports and 
AFAST Monitoring Plan Reports). This report will be submitted at the end 
of the fourth year of the rule (November 2012), covering activities that 
have occurred through June 1, 2012.
    (i) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for AFAST, SOCAL, the HRC, the Marianas Range Complex, the Northwest 
Training Range, the Gulf of Alaska, and the East Coast Undersea Warfare 
Training Range.
    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the AFAST Comprehensive 
Report, the Comprehensive National ASW report, the Annual AFAST Exercise 
Report, or the Annual AFAST Monitoring Plan Report (or the multi-Range 
Complex Annual Monitoring Plan Report, if that is how the Navy chooses 
to submit the information) if submitted within 3 months of receipt. 
These reports will be considered final after the Navy has addressed 
NMFS' comments or provided the requested information, or three months 
after the submittal of the draft if NMFS does not comment by then.
    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 216.246  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. 216.103) conducting 
the activity identified in Sec. 216.240(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec. 216.247 or a renewal under Sec. 216.248.



Sec. 216.247  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.248.
    (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. 216.248  Renewal of Letters of Authorization and Adaptive Management.

    (a) A Letter of Authorization issued under Sec. Sec. 216.106 and 
216.247 for the activity identified in Sec. 216.240(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.246 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 (by the dates indicated in these regulations) of 
the monitoring reports required under Sec. 216.245(c) through (j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under

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Sec. 216.244 and the Letter of Authorization issued under Sec. Sec. 
216.106 and 216.247, were undertaken and will be undertaken during the 
upcoming annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.248 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. Review and comment on renewals of Letters of Authorization 
are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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 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 Navy's monitoring from the previous year 
(either from AFAST or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (section 216.245(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 216.245(d))).
    (4) Results from specific stranding investigations (either from the 
AFAST Study Area or other locations, and involving coincident MFAS/HFAS 
or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).



Sec. 216.249  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 
and 216.247 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.248, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.242(c), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.247 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 Marine Mammals Incidental to Conducting Precision 

              Strike Weapon Missions in the Gulf of Mexico

    Source: 71 FR 67822, Nov. 24, 2006, unless otherwise noted.

    Effective Date Note: At 71 FR 67822, Nov. 24, 2006, subpart W, 
consisting of Sec. Sec. 216.250 through 216.259, was added, effective 
Dec. 26, 2006 through Dec. 27, 2011.



Sec. 216.250  Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the incidental taking 
of those marine mammal species specified in paragraph (b) of this 
section by U.S. citizens engaged in U.S. Air Force Precision Strike 
Weapon missions within the Eglin Air Force Base Gulf Test and

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Training Range within the northern Gulf of Mexico. The authorized 
activities as specified in a Letter of Authorization issued under 
Sec. Sec. 216.106 and 216.257 include, but are not limited to, 
activities associated with (1) the Joint Air-to-Surface Stand-off 
Missile (JASSM) exercise for a maximum of two live shots (single) and 4 
inert shots (single) annually and (2) the small-diameter bomb (SDB) 
exercise for a maximum of six live shots a year, with two of the shots 
occurring simultaneously and a maximum of 12 inert shots, with up to two 
occurring simultaneously.
    (b) The incidental take by Level A harassment, Level B harassment, 
or mortality of marine mammals under the activity identified in this 
section is limited to the following species: Atlantic bottlenose 
dolphins (Tursiops truncatus), Atlantic spotted dolphins (Stenella 
frontalis), dwarf sperm whales (Kogia simus) and pygmy sperm whale 
(Kogia breviceps).



Sec. 216.251  Effective dates.

    Regulations in this subpart are effective from December 26, 2006 
until December 27, 2011.



Sec. 216.252  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.257, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals by Level A and 
Level B harassment, including lethal take within the area described in 
Sec. 216.250(a), provided the activity is in compliance with all terms, 
conditions, and requirements of these regulations and the appropriate 
Letter of Authorization.
    (b) The taking of marine mammals under a Letter of Authorization is 
limited to the species listed in Sec. 216.250(b) and is limited to a 
total of 1 mortality, 2 takes by Level A harassment, and 53 takes by 
Level B harassment annually.



Sec. 216.253  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.250 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.257, no person in connection with the activities described in Sec. 
216.250 shall:
    (a) Take any marine mammal not specified in Sec. 216.250(b);
    (b) Take any marine mammal specified in Sec. 216.250(b) other than 
by incidental, unintentional Level A or Level B harassment or mortality;
    (c) Take a marine mammal specified in Sec. 216.250(b) if such 
taking results in more than a negligible impact on the species or stocks 
of such marine mammal; or
    (d) Violate, or fail to comply with, the terms, conditions, and 
requirements of these regulations or a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.257.



Sec. 216.254  Mitigation.

    The activity identified in Sec. 216.250(a) must be conducted in a 
manner that minimizes, to the greatest extent practicable, adverse 
impacts on marine mammal species and stocks and their habitats. When 
conducting operations identified in Sec. 216.250(a) under a Letter of 
Authorization, the following mitigation measures must be implemented:
    (a)(1) For the JASSM, the holder of the Letter of Authorization must 
establish and monitor a safety zone for marine mammals with a radius of 
2.0 nm (3.7 km) from the center of the detonation and a buffer zone with 
a radius of 1.0 nm (1.85 km) radius from the outer edge of the safety 
zone.
    (2) For the SDB, the holder of the Letter of Authorization must 
establish and monitor a safety for marine mammals with a radius of no 
less than 5 nm (9.3 km) for single bombs and 10 nm (18.5 km) for double 
bombs and a buffer zone from the outer edge of the safety zone with a 
radius of at least 2.5 nm (4.6 km) for single bombs and 5 nm (18.5 km) 
for double bombs.
    (b) Prior to a JASSM or SDB launch:
    (1) If any marine mammals are observed within the designated safety 
zone prescribed in condition (a)(1) above, or within the buffer zone 
prescribed in condition (a)(2) above and it/they are on a course that 
will put them within the safety zone prior to an JASSM or SDB launch, 
the launch must be delayed until all marine mammals are no longer within 
the designated safety zone.

[[Page 128]]

    (2) If any marine mammals are detected in the buffer zone and 
subsequently cannot be reacquired, the mission launch will not continue 
until the next verified location is outside of the safety zone and the 
animal is moving away from the mission area.
    (3) If weather and/or sea conditions preclude adequate aerial 
surveillance for detecting marine mammals, detonation must be delayed 
until adequate sea conditions exist for aerial surveillance to be 
undertaken. Adequate sea conditions means the sea state does not exceed 
Beaufort sea state 3.5 (i.e., whitecaps on 33 to 50 percent of surface; 
0.6 m (2 ft) to 0.9 m (3 ft) waves), the visibility is 5.6 km (3 nm) or 
greater, and the ceiling is 305 m (1,000 ft) or greater.
    (4) To ensure adequate daylight for pre- and post-detonation 
monitoring, mission launches may not take place earlier than 2 hours 
after sunrise, and detonations may not take place later than 2 hours 
prior to sunset, or whenever darkness or weather conditions will 
preclude completion of the post-test survey effort described in Sec. 
216.255.
    (5) If post-detonation surveys determine that a serious injury or 
lethal take of a marine mammal has occurred, the test procedure and the 
monitoring methods must be reviewed with the National Marine Fisheries 
Service and appropriate changes must be made prior to conducting the 
next mission detonation.
    (6) Mission launches must be delayed if aerial or vessel monitoring 
programs described under Sec. 216.255 cannot be carried out fully.



Sec. 216.255  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. Sec. 216.106 and 216.257 for activities described in Sec. 
216.250(a) is required to conduct the monitoring and reporting measures 
specified in this section and any additional monitoring measures 
contained in the Letter of Authorization.
    (b) The Holder of the Letter of Authorization is required to 
cooperate with the National Marine Fisheries Service, and any other 
Federal, state or local agency authorized to monitor the impacts of the 
activity on marine mammals. Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must notify the 
Director, Office of Protected Resources, National Marine Fisheries 
Service, or designee, by letter or telephone (301-713-2289), at least 2 
weeks prior to any modification to the activity identified in Sec. 
216.250(a) that has the potential to result in the mortality or Level A 
or Level B harassment of marine mammals that was not identified and 
addressed previously.
    (c) The Holder of this Authorization must:
    (1) Designate qualified on-site marine mammal observers to record 
the effects of mission launches on marine mammals that inhabit the 
northern Gulf of Mexico;
    (2) Have on-site marine mammal observers approved in advance by the 
National Marine Fisheries Service to conduct the mitigation, monitoring 
and reporting activities specified in these regulations and in the 
Letter of Authorization issued pursuant to Sec. 216.106 and Sec. 
216.257.
    (3) Conduct aerial surveys to reduce impacts on protected species. 
The aerial survey/monitoring team will consist of two experienced marine 
mammal observers, approved in advance by the Southeast Region, National 
Marine Fisheries Service. The aircraft will also have a data recorder 
who would be responsible for relaying the location, the species if 
possible, the direction of movement, and the number of animals sighted.
    (4) Conduct shipboard monitoring to reduce impacts to protected 
species. Trained marine mammal observers will conduct monitoring from 
the highest point possible on each mission or support vessel(s). The 
observer on the vessel must be equipped with optical equipment with 
sufficient magnification (e.g., 25X power ``Big-Eye'' binoculars. The 
marine mammal observation platform must be of sufficient height to 
provide observers a platform to see a major portion of the safety zone.
    (d) The aerial and shipboard monitoring teams will maintain proper 
lines of communication to avoid communication deficiencies. The 
observers from the aerial team and operations

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vessel will have direct communication with the lead scientist aboard the 
operations vessel.
    (e) Pre-mission Monitoring: Approximately 5 hours prior to the 
mission, or at daybreak, the appropriate vessel(s) would be on-site in 
the primary test site near the location of the earliest planned mission 
point. Observers onboard the vessel will assess the suitability of the 
test site, based on visual observation of marine mammals and overall 
environmental conditions (visibility, sea state, etc.). This information 
will be relayed to the lead scientist.
    (f) Three Hours Prior to Mission:
    (1) Approximately three hours prior to the mission launch, aerial 
monitoring will commence within the test site to evaluate the test site 
for environmental suitability. Evaluation of the entire test site would 
take approximately 1 to 1.5 hours. The aerial monitoring team will begin 
monitoring the safety zone and buffer zone around the target area.
    (2) Shipboard observers will monitor the safety and buffer zone, and 
the lead scientist will enter all marine mammal sightings, including the 
time of sighting and the direction of travel, into a marine animal 
tracking and sighting database.
    (g) One to 1.5 Hours Prior to Mission Launch:
    (1) Depending upon the mission, aerial and shipboard viewers will be 
instructed to leave the area and remain outside the safety area. The 
aerial team will report all marine animals spotted and their directions 
of travel to the lead scientist onboard the vessel.
    (2) The shipboard monitoring team will continue searching the buffer 
zone for protected species as it leaves the safety zone. The surface 
vessels will continue to monitor from outside of the safety area until 
after impact.
    (h) Post-mission monitoring:
    (1) The vessels will move into the safety zone from outside the 
safety zone and continue monitoring for at least two hours, 
concentrating on the area down current of the test site.
    (2) The Holder of the Letter of Authorization will closely 
coordinate mission launches with marine animal stranding networks. 
Coordination shall include:
    (i) Pre-activity notification of a PSW exercise; and
    (ii) Post-event surveying of the Eglin AFB shore-line in the 
vicinity of the PSW exercise.
    (3) The monitoring team will document any dead or injured marine 
mammals and, if practicable, recover and examine any dead animals.
    (i) Activities related to the monitoring described in this section 
may include retention of marine mammals without the need for a separate 
scientific research permit.
    (j) The Holder of the Letter of Authorization must conduct any 
marine mammal research required under the Letter of Authorization.
    (k) Reporting. (1) Unless specified otherwise in the Letter of 
Authorization, the Holder of the Letter of Authorization must submit an 
annual report to the Director, Office of Protected Resources, National 
Marine Fisheries Service, no later than 30 days prior to the date of 
expiration of the Letter of Authorization. This report must contain all 
information required by these regulations and the Letter of 
Authorization.
    (2) The final comprehensive report on all marine mammal monitoring 
and research conducted during the period of these regulations must be 
submitted to the Director, Office of Protected Resources, National 
Marine Fisheries Service at least 240 days prior to expiration of these 
regulations or 240 days after the expiration of these regulations if new 
regulations will not be requested.



Sec. 216.256  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations, 
the U.S. citizen (as defined at Sec. 216.103 ) conducting the activity 
identified in Sec. 216.250(a) must apply for and obtain either an 
initial Letter of Authorization in accordance with Sec. Sec. 216.106 
and 216.257 or a renewal under Sec. 216.258.



Sec. 216.257  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time specified in the Letter

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of Authorization, but may not to exceed the period of validity of this 
subpart, and must be renewed annually subject to annual renewal 
conditions in Sec. 216.258.
    (b) A Letter of Authorization with a period of validity less than 
the period of this subpart may be renewed subject to renewal conditions 
in Sec. 216.258.
    (c) Each Letter of Authorization will set forth:
    (1) Permissible methods of incidental taking;
    (2) Means of effecting the least practicable adverse impact on the 
species, its habitat, and on the availability of the species for 
subsistence uses; and
    (3) Requirements for monitoring and reporting incidental takes.
    (d) Issuance and renewal of the Letter of Authorization will be 
based on a determination that the total number of marine mammals taken 
by the activity as a whole will have no more than a negligible impact on 
the species or stock of affected marine mammals.
    (e) Except for the initial Letter of Authorization, notice of 
issuance or denial of subsequent Letters of Authorization will be 
published in the Federal Register within 30 days of a determination.



Sec. 216.258  Renewal of Letters of Authorization.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.257 for the activity identified in Sec. 216.250(a) will be renewed 
annually upon:
    (1) Notification to the National Marine Fisheries Service that the 
activity described in the application submitted under Sec. 216.256 will 
be undertaken and that there will not be a substantial modification to 
the described work, mitigation or monitoring undertaken during the 
upcoming 12 months;
    (2) Timely receipt of the monitoring report required under Sec. 
216.255(k), and the Letter of Authorization, which has been reviewed and 
accepted by the National Marine Fisheries Service; and
    (3) A determination by the National Marine Fisheries Service that 
the mitigation, monitoring and reporting measures required under Sec. 
216.254, Sec. 216.255, and the Letter of Authorization issued under 
Sec. Sec. 216.106 and 216.257, were undertaken and will be undertaken 
during the upcoming annual period of validity of a renewed Letter of 
Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.258 indicates that a substantial 
modification to the described work, mitigation, monitoring or research 
undertaken during the upcoming season will occur, the National Marine 
Fisheries Service will provide the public a period of 30 days for review 
and seek comment on:
    (1) New cited information and data that indicates that the 
determinations made for promulgating these regulations are in need of 
reconsideration, and
    (2) Proposed changes to the mitigation, monitoring and research 
requirements contained in these regulations or in the current Letter of 
Authorization.



Sec. 216.259  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to a 
Letter of Authorization issued pursuant to Sec. Sec. 216.106 shall be 
made until after notification and an opportunity for public comment has 
been provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.258, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.250(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.257 may be 
substantively modified without prior notification and an opportunity for 
public comment. Notification will be published in the Federal Register 
within 30 days subsequent to the action.

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Subpart X_Taking Marine Mammals Incidental to U.S. Navy Training in the 

         Southern California Range Complex (SOCAL Range Complex)

    Source: 74 FR 3909, Jan. 21, 2009, unless otherwise noted.

    Effective Date Note: 74 FR 3909, Jan. 21, 2009, subpart X was added, 
effective Jan. 14, 2009 through Jan. 14, 2014.



Sec. 216.270  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 SOCAL Range Complex (as depicted in Figure ES-1 in 
the Navy's Final Environmental Impact Statement for the SOCAL Range 
Complex), which extends southwest from southern California in an 
approximately 700 by 200 nm rectangle with the seaward corners at 
27[deg]30[min]00[sec] N. lat.; 127[deg]10[min]04[sec] W. long. and 
24[deg]00[min]01[sec] N. lat.; 125[deg]00[min]03[sec] W. long.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The use of the following mid-frequency active sonar (MFAS) 
sources, high frequency active sonar (HFAS) sources for U.S. Navy anti-
submarine warfare (ASW), mine warfare (MIW) training, maintenance, or 
research, development, testing, and evaluation (RDT&E) in the amounts 
indicated below (10 percent):

(i) AN/SQS-53 (hull-mounted active sonar)--up to 9885 hours over the 
course of 5 years (an average of 1977 hours per year)
(ii) AN/SQS-56 (hull-mounted active sonar)--up to 2470 hours over the 
course of 5 years (an average of 494 hours per year)
(iii) AN/BQQ-10 (submarine active sonar)--up to 4075 hours over the 
course of 5 years (an average of 815 hours per year)(an average of 2 
pings per hour during training events, 60 pings per hour for 
maintenance)
(iv) AN/AQS-22 or 13 (active helicopter dipping sonar)--up to 13595 dips 
over the course of 5 years (an average of 2719 dips per year--10 pings 
per dip)
(v) SSQ-62 (Directional Command Activated Sonobuoy System (DICASS) 
sonobuoys)--up to 21275 sonobuoys over the course of 5 years (an average 
of 4255 sonobuoys per year)
(vi) MK-48 (heavyweight torpedoes)--up to 435 torpedoes over the course 
of 5 years (an average of 87 torpedoes per year)
(vii) AN/BQQ-15 (submarine navigational sonar)--up to 610 hours over the 
course of 5 years (an average of 122 hours per year)
(viii) MK-46 (lightweight torpedoes)--up to 420 torpedoes over the 
course of 5 years (an average of 84 torpedoes per year)
(ix) AN/SLQ-25A NIXIE--up to 1135 hours over the course of 5 years (an 
average of 227 hours per year)
(x) AN/SSQ-125 (AEER sonar sonobuoy)--up to 540 sonobuoys (total, of 
EER/IEER and AEER) over the course of 5 years (an average of 108 per 
year))
    (2) The detonation of the underwater explosives identified in 
paragraph (c)(2)(i) conducted as part of the training exercises 
identified in paragraph (c)(2)(ii):
(i) Underwater Explosives:
    (A) 5'' Naval Gunfire (9.5 lbs)
    (B) 76 mm rounds (1.6 lbs)
    (C) Maverick (78.5 lbs)
    (D) Harpoon (448 lbs)
    (E) MK-82 (238 lbs)
    (F) MK-83 (574 lbs)
    (G) MK-84 (945 lbs)
    (H) MK-48 (851 lbs)
    (I) Demolition Charges (20 lbs)
    (J) AN/SSQ-110A (IEER explosive sonobuoy--5 lbs)
    (ii) Training Events:
    (A) Surface-to-surface Gunnery Exercises (S-S GUNEX)--up to 2010 
exercises over the course of 5 years (an average of 402 per year)

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    (B) Air-to-surface Missile Exercises (A-S MISSILEX)--up to 250 
exercises over the course of 5 years (an average of 50 per year)
    (C) Bombing Exercises (BOMBEX)--up to 200 exercises over the course 
of 5 years (an average of 40 per year)
    (D) Sinking Exercises (SINKEX)--up to 10 exercises over the course 
of 5 years (an average of 2 per year)
    (E) Extended Echo Ranging and Improved Extended Echo Ranging (EER/
IEER) Systems--up to 15 exercises (total, of EER/IEER and AEER combined) 
over the course of 5 years (an average of 3 exercises, or 108 sonobuoy 
deployments, per year).



Sec. 216.271  Effective dates and definitions.

    (a) Regulations are effective January 14, 2009 through January 14, 
2014.
    (b) The following definitions are utilized in these regulations:
    (1) Uncommon Stranding Event (USE)--A stranding event that takes 
place during an integrated, coordinated, or major training exercise 
(MTE) and involves any one of the following:
    (i) Two or more individuals of any cetacean species (not including 
mother/calf pairs, unless of species of concern listed in Sec. 
216.271(b)(1)(ii) found dead or live on shore within a two day period 
and occurring within 30 miles of one another.
    (ii) A single individual or mother/calf pair of any of the following 
marine mammals of concern: Beaked whale of any species, dwarf or pygmy 
sperm whales, short-finned pilot whales, humpback whales, sperm whales, 
blue whales, fin whales, or sei whales.
    (iii) A group of 2 or more cetaceans of any species exhibiting 
indicators of distress as defined in the SOCAL Range Complex Stranding 
Response Plan.
    (2) Shutdown--The cessation of MFAS/HFAS operation or detonation of 
explosives within 14 nm of any live, in the water, animal involved in a 
USE.



Sec. 216.272  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 and 216.277, the Holder of the Letter of Authorization may 
incidentally, but not intentionally, take marine mammals within the area 
described in Sec. 216.270(b), provided the activity is in compliance 
with all terms, conditions, and requirements of these regulations and 
the appropriate Letter of Authorization.
    (b) The activities identified in Sec. 216.270(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. 216.270(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment (10 percent of the 
number of takes indicated below):
(i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--110 (an average of 22 
annually)
    (B) Fin whale (Balaenoptera physalus)--870 (an average of 174 
annually)
    (C) Blue whale (Balaenoptera musculus)--3085 (an average of 617 
annually)
    (D) Minke whale (Balaenoptera acutorostrata)--665 (an average of 133 
annually)
    (E) Gray whale (Eschrichtius robustus)--27340 (an average of 5468 
annually)
(ii) Odontocetes:
    (A) Sperm whales (Physeter macrocephalus)--775 (an average of 155 
annually)
    (B) Pygmy sperm whales (Kogia breviceps)--830 (an average of 166 
annually)
    (C) Dwarf sperm whale (Kogia sima)--100 (an average of 20 annually)
    (D) Mesoplodont beaked whales (Blainville's, Hubb's, Perrin's, 
pygmy, and ginkgo-toothed) (Mesoplodon densirostris, M. carlhubbsi, M. 
perrini, M. peruvianus, M. ginkgodens)--690 (an average of 138 annually)
    (E) Cuvier's beaked whales (Ziphius cavirostris)--2175 (an average 
of 435 annually)

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    (F) Baird's beaked whales (Berardius bairdii)--100 (an average of 20 
annually)
    (G) Unidentified beaked whales--555 (an average of 104 annually)
    (H) Rough-toothed dolphin (Steno bredanensis)--100 (an average of 20 
annually)
    (I) Bottlenose dolphin (Tursiops truncatus)--7480 (an average of 
1516 annually)
    (J) Pan-tropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually)
    (K) Spinner dolphin (Stenella longirostris)--100 (an average of 20 
annually)
    (L) Striped dolphin (Stenella coeruleoalba)--9190 (an average of 
1838 annually)
    (M) Long-beaked common dolphin (Delphinus capensis)--23145 (an 
average of 4629 annually)
    (N) Risso's dolphin (Grampus griseus)--17995 (an average of 3599 
annually)
    (O) Northern right whale dolphin (Lissodelphis borealis)--7935 (an 
average of 1547 annually)
    (P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)--7020 
(an average of 1404 annually)
    (Q) Short-beaked common dolphin (Delphinus delphis)--197350 (an 
average of 39470 annually)
    (R) Melon-headed whale (Peponocephala electra)--100 (an average of 
20 annually)
    (S) Pygmy killer whale (Feresa attenuata)--100 (an average of 20 
annually)
    (T) False killer whale (Pseudorca crassidens)--100 (an average of 20 
annually)
    (U) Killer whale (Orcinus orca)--70 (an average of 14 annually)
    (V) Short-finned pilot whale (Globicephala macrorynchus)--260 (an 
average of 52 annually)
    (W) Dall's porpoise (Phocoenoides dalli)--3145 (an average of 629 
annually)
(iii) Pinnipeds:
    (A) Northern elephant seal (Mirounga angustirostris)--4795 (an 
average of 959 annually)
    (B) Pacific harbor seal (Phoca vitulina)--28380 (an average of 5676 
annually)
    (C) California sea lion (Zalophus californianus)--277530 (an average 
of 55506 annually)
    (D) Northern fur seal (Callorhinus ursinus)--6185 (an average of 
1237 annually)
    (E) Guadalupe fur seal (Arctocephalus townsendi)--5340 (an average 
of 1068 annually)
    (2) Level A Harassment and/or mortality of no more than 10 beaked 
whales (total), of any of the species listed in Sec. 
216.272(c)(1)(ii)(D) through (G) over the course of the 5-year 
regulations.



Sec. 216.273  Prohibitions.

    Notwithstanding takings contemplated in Sec. 216.272 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 and 
216.277, no person in connection with the activities described in Sec. 
216.270 may:
    (a) Take any marine mammal not specified in Sec. 216.272(c);
    (b) Take any marine mammal specified in Sec. 216.272(c) other than 
by incidental take as specified in Sec. 216.272(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 216.272(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. Sec. 216.106 and 216.277.



Sec. 216.274  Mitigation.

    (a) When conducting activities identified in Sec. 216.270(c), the 
mitigation measures contained in the Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.277 must be implemented. These 
mitigation measures include, but are not limited to:
    (1) Navy's General SOCAL Maritime Measures for All Training at Sea:
    (i) Personnel Training (for all Training Types):
    (A) All commanding officers (COs), executive officers (XOs), 
lookouts, Officers of the Deck (OODs), junior OODs (JOODs), maritime 
patrol aircraft aircrews, and Anti-submarine Warfare (ASW)/Mine Warfare 
(MIW) helicopter

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crews shall complete the NMFS-approved Marine Species Awareness Training 
(MSAT) by viewing the U.S. Navy MSAT digital versatile disk (DVD). All 
bridge lookouts shall complete both parts one and two of the MSAT; part 
two is optional for other personnel.
    (B) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Education and Training Command [NAVEDTRA] 12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced lookout. Following successful 
completion of this supervised training period, lookouts shall complete 
the Personal Qualification Standard Program, certifying that they have 
demonstrated the necessary skills (such as detection and reporting of 
partially submerged objects). Personnel being trained as lookouts can be 
counted among required lookouts as long as supervisors monitor their 
progress and performance.
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts will watch for and report to the OOD 
the presence of marine mammals.
    (D) On surface vessels equipped with a mid-frequency active sensor, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be properly 
installed and in good working order to assist in the detection of marine 
mammals in the vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookout Techniques in accordance with the Lookout Training Handbook. 
(NAVEDTRA 12968-D).
    (G) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (H) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and take reasonable and practicable actions to 
avoid collisions and activities that might result in close interaction 
of naval assets and marine mammals. Actions may include changing speed 
and/or direction and are dictated by environmental and other conditions 
(e.g., safety, weather).
    (I) Floating weeds and kelp, algal mats, clusters of seabirds, and 
jellyfish are good indicators of marine mammals. Therefore, where these 
circumstances are present, the Navy shall exercise increased vigilance 
in watching for marine mammals.
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine mammals as long as it does not violate safety constraints or 
interfere with the accomplishment of primary operational duties. Marine 
mammal detections shall be immediately reported to assigned Aircraft 
Control Unit for further dissemination to ships in the vicinity of the 
marine species as appropriate when it is reasonable to conclude that the 
course of the ship will likely result in a closing of the distance to 
the detected marine mammal.

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    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records will be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Navy's Measures for MFAS Operations:
    (i) Personnel Training (for MFAS Operations):
    (A) All lookouts onboard platforms involved in ASW training events 
shall review the NMFS-approved Marine Species Awareness Training 
material prior to use of mid-frequency active sonar.
    (B) All COs, XOs, and officers standing watch on the bridge shall 
have reviewed the Marine Species Awareness Training material prior to a 
training event employing the use of mid-frequency active sonar.
    (C) Navy lookouts shall undertake extensive training in order to 
qualify as a watchstander in accordance with the Lookout Training 
Handbook (Naval Educational Training [NAVEDTRA], 12968-D).
    (D) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects). This does not forbid 
personnel being trained as lookouts from being counted as those listed 
in previous measures so long as supervisors monitor their progress and 
performance.
    (E) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure in order 
to facilitate implementation of mitigation measures if marine species 
are spotted.
    (ii) Lookout and Watchstander Responsibilities:
    (A) On the bridge of surface ships, there shall always be at least 
three people on watch whose duties include observing the water surface 
around the vessel.
    (B) All surface ships participating in ASW training events shall, in 
addition to the three personnel on watch noted previously, have at all 
times during the exercise at least two additional personnel on watch as 
marine mammal lookouts.
    (C) Personnel on lookout and officers on watch on the bridge shall 
have at least one set of binoculars available for each person to aid in 
the detection of marine mammals.
    (D) On surface vessels equipped with mid-frequency active sonar, 
pedestal mounted ``Big Eye'' (20x110) binoculars shall be present and in 
good working order to assist in the detection of marine mammals in the 
vicinity of the vessel.
    (E) Personnel on lookout shall employ visual search procedures 
employing a scanning methodology in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (F) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook.
    (G) Personnel on lookout shall be responsible for reporting all 
objects or anomalies sighted in the water (regardless of the distance 
from the vessel) to the Officer of the Deck, since any object or 
disturbance (e.g., trash, periscope, surface disturbance, discoloration) 
in the water may be indicative of a threat to the vessel and its crew or 
indicative of a marine species that may need to be avoided as warranted.
    (iii) Operating Procedures:
    (A) Navy will distribute final mitigation measures contained in the 
LOA and the Incidental take statement of NMFS' biological opinion to the 
Fleet.
    (B) COs shall make use of marine species detection cues and 
information to limit interaction with marine species to the maximum 
extent possible consistent with safety of the ship.
    (C) All personnel engaged in passive acoustic sonar operation 
(including aircraft, surface ships, or submarines) shall monitor for 
marine mammal vocalizations and report the detection of any marine 
mammal to the appropriate watch station for dissemination and 
appropriate action.

[[Page 136]]

    (D) During mid-frequency active sonar operations, personnel shall 
utilize all available sensor and optical systems (such as night vision 
goggles) to aid in the detection of marine mammals.
    (E) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties.
    (F) Aircraft with deployed sonobuoys shall use only the passive 
capability of sonobuoys when marine mammals are detected within 200 yds 
(183 m) of the sonobuoy.
    (G) Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (H) Safety Zones--When marine mammals are detected by any means 
(aircraft, shipboard lookout, or acoustically) within or closing to 
inside 1,000 yds (914 m) of the sonar dome (the bow), the ship or 
submarine shall limit active transmission levels to at least 6 decibels 
(dB) below normal operating levels.
    (1) Ships and submarines shall continue to limit maximum 
transmission levels by this 6-dB factor until the animal has been seen 
to leave the area, has not been detected for 30 minutes, or the vessel 
has transited more than 2,000 yds (1829 m) beyond the location of the 
last detection.
    (2) Should a marine mammal be detected within or closing to inside 
500 yds (457 m) of the sonar dome, active sonar transmissions shall be 
limited to at least 10-dB below the equipment's normal operating level. 
Ships and submarines shall continue to limit maximum ping levels by this 
10-dB factor until the animal has been seen to leave the area, has not 
been detected for 30 minutes, or the vessel has transited more than 
2,000 yds (1829 m) beyond the location of the last detection.
    (3) Should the marine mammal be detected within or closing to inside 
200 yds (183 m) of the sonar dome, active sonar transmissions shall 
cease. Sonar shall not resume until the animal has been seen to leave 
the area, has not been detected for 30 minutes, or the vessel has 
transited more than 2,000 yds (1829 m) beyond the location of the last 
detection.
    (4) Special conditions applicable for dolphins and porpoises only: 
If, after conducting an initial maneuver to avoid close quarters with 
dolphins or porpoises, the OOD concludes that dolphins or porpoises are 
deliberately closing to ride the vessel's bow wave, no further 
mitigation actions are necessary while the dolphins or porpoises 
continue to exhibit bow wave riding behavior.
    (5) If the need for power-down should arise as detailed in paragraph 
(a)(2)(iii)(H) of this section, the Navy shall follow the requirements 
as though they were operating at 235 dB--the normal operating level 
(i.e., the first power-down will be to 229 dB, regardless of at what 
level above 235 dB active sonar was being operated).
    (I) Prior to start up or restart of active sonar, operators will 
check that the Safety Zone radius around the sound source is clear of 
marine mammals.
    (J) Active sonar levels (generally)--Navy shall operate active sonar 
at the lowest practicable level, not to exceed 235 dB, except as 
required to meet tactical training objectives.
    (K) Helicopters shall observe/survey the vicinity of an ASW training 
event for 10 minutes before the first deployment of active (dipping) 
sonar in the water.
    (L) Helicopters shall not dip their active sonar within 200 yds (183 
m) of a marine mammal and shall cease pinging if a marine mammal closes 
within 200 yds (183 m) after pinging has begun.
    (M) Submarine sonar operators shall review detection indicators of 
close-aboard marine mammals prior to the commencement of ASW training 
events involving active mid-frequency sonar.
    (N) Night vision goggles shall be available to all ships and air 
crews, for use as appropriate.

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    (3) Navy's Measures for Underwater Detonations:
    (i) Surface-to-Surface Gunnery (explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp. 
Intended impact (i.e., where the Navy is aiming) shall not be within 600 
yds (585 m) of known or observed floating weeds and kelp, and algal 
mats.
    (B) For exercises using targets towed by a vessel or aircraft, 
target-towing vessels/aircraft shall maintain a trained lookout for 
marine mammals, if applicable. If a marine mammal is sighted in the 
vicinity, the tow aircraft/vessel shall immediately notify the firing 
vessel, which shall suspend the exercise until the area is clear.
    (C) A 600-yard radius buffer zone shall be established around the 
intended target.
    (D) From the intended firing position, trained lookouts shall survey 
the buffer zone for marine mammals prior to commencement and during the 
exercise as long as practicable.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within it.
    (ii) Surface-to-Surface Gunnery (non-explosive rounds):
    (A) Lookouts shall visually survey for floating weeds and kelp, and 
algal mats. Intended impact will not be within 200 yds (183 m) of known 
or observed floating weeds and kelp, and algal mats.
    (B) A 200-yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) From the intended firing position, trained lookouts shall survey 
the buffer zone for marine mammals prior to commencement and during the 
exercise as long as practicable.
    (D) If applicable, target towing vessels shall maintain a lookout. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
vessel shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (E) The exercise shall be conducted only when the buffer zone is 
visible and marine mammals are not detected within the target area and 
the buffer zone.
    (iii) Surface-to-Air Gunnery (explosive and non-explosive rounds):
    (A) Vessels shall orient the geometry of gunnery exercises in order 
to prevent debris from falling in the area of sighted marine mammals.
    (B) Vessels will expedite the recovery of any parachute deploying 
aerial targets to reduce the potential for entanglement of marine 
mammals.
    (C) Target towing aircraft shall maintain a lookout, if applicable. 
If a marine mammal is sighted in the vicinity of the exercise, the tow 
aircraft shall immediately notify the firing vessel in order to secure 
gunnery firing until the area is clear.
    (iv) Air-to-Surface Gunnery (explosive and non-explosive rounds)
    (A) If surface vessels are involved, lookouts will visually survey 
for floating kelp in the target area. Impact shall not occur within 200 
yds (183 m) of known or observed floating weeds and kelp or algal mats.
    (B) A 200 yd (183 m) radius buffer zone shall be established around 
the intended target.
    (C) If surface vessels are involved, lookout(s) shall visually 
survey the buffer zone for marine mammals prior to and during the 
exercise.
    (D) Aerial surveillance of the buffer zone for marine mammals shall 
be conducted prior to commencement of the exercise. Aircraft crew/pilot 
shall maintain visual watch during exercises. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually see 
ordnance impact areas.
    (E) The exercise shall be conducted only if marine mammals are not 
visible within the buffer zone.
    (v) Small Arms Training--(grenades, explosive and non-explosive 
rounds)--Lookouts will visually survey for floating weeds or kelp, algal 
mats, and marine mammals. Weapons shall not be fired in the direction of 
known or observed floating weeds or kelp, algal mats, or marine mammals.
    (vi) Air-to-Surface At-sea Bombing Exercises (explosive and non-
explosive):
    (A) If surface vessels are involved, trained lookouts shall survey 
for floating kelp and marine mammals. Ordnance shall not be targeted to 
impact

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within 1,000 yds (914 m) of known or observed floating kelp or marine 
mammals.
    (B) A 1,000 yd (914 m) radius buffer zone shall be established 
around the intended target.
    (C) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (152 m) or lower, if 
safe to do so, and at the slowest safe speed. Release of ordnance 
through cloud cover is prohibited: aircraft must be able to actually see 
ordnance impact areas. Survey aircraft should employ most effective 
search tactics and capabilities.
    (D) The exercise will be conducted only if marine mammals are not 
visible within the buffer zone.
    (vii) Air-to-Surface Missile Exercises (explosive and non-
explosive):
    (A) Ordnance shall not be targeted to impact within 1,800 yds (1646 
m) of known or observed floating kelp.
    (B) Aircraft shall visually survey the target area for marine 
mammals. Visual inspection of the target area shall be made by flying at 
1,500 (457 m) feet or lower, if safe to do so, and at slowest safe 
speed. Firing or range clearance aircraft must be able to actually see 
ordnance impact areas. Explosive ordnance shall not be targeted to 
impact within 1,800 yds (1646 m) of sighted marine mammals.
    (viii) Demolitions, Mine Warfare, and Mine Countermeasures (up to a 
20-lb NEW charge):
    (A) Exclusion Zones--All Demolitions, Mine Warfare and Mine 
Countermeasures Operations involving the use of explosive charges must 
include exclusion zones for marine mammals to prevent physical and/or 
acoustic effects to those species. These exclusion zones shall extend in 
a 700-yard arc radius around the detonation site.
    (B) Pre-Exercise Surveys--For Demolition and Ship Mine 
Countermeasures Operations, pre-exercise survey shall be conducted 
within 30 minutes prior to the commencement of the scheduled explosive 
event. The survey may be conducted from the surface, by divers, and/or 
from the air, and personnel shall be alert to the presence of any marine 
mammal. Should a marine mammal be present within the survey area, the 
exercise shall be paused until the animal voluntarily leaves the area. 
The Navy shall suspend detonation exercises and ensure the area is clear 
for a full 30 minutes prior to detonation. Personnel shall record any 
marine mammal observations during the exercise.
    (C) Post-Exercise Surveys--Surveys within the same radius shall also 
be conducted within 30 minutes after the completion of the explosive 
event.
    (D) Reporting--If there is evidence that a marine mammal may have 
been stranded, injured or killed by the action, Navy activities shall be 
immediately suspended and the situation immediately reported by the 
participating unit to the Officer in Charge of the Exercise (OCE), who 
will follow Navy procedures for reporting the incident to Commander, 
Pacific Fleet, Commander, Third Fleet, Commander, Navy Region Southwest, 
Environmental Director, and the chain-of-command. The situation shall 
also be reported to NMFS (see Stranding Plan for details).
    (ix) Mining Operations--Initial target points shall be briefly 
surveyed prior to inert ordnance (no live ordnance used) release from an 
aircraft to ensure the intended drop area is clear of marine mammals. To 
the extent feasible, the Navy shall retrieve inert mine shapes dropped 
during Mining Operations.
    (x) Sink Exercise:
    (A) All weapons firing shall be conducted during the period 1 hour 
after official sunrise to 30 minutes before official sunset.
    (B) An exclusion zone with a radius of 1.5 nm shall be established 
around each target. This 1.5 nm zone includes a buffer of 0.5 nm to 
account for errors, target drift, and animal movement. In addition to 
the 1.5 nm exclusion zone, a further safety zone, which extends from the 
exclusion zone at 1.5 nm out an additional 0.5 nm, shall be surveyed. 
Together, the zones (exclusion and safety) extend out 2 nm from the 
target.
    (C) A series of surveillance over-flights shall be conducted within 
the exclusion and the safety zones, prior to and during the exercise, 
when feasible. Survey protocol shall be as follows:

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    (1) Overflights within the exclusion zone shall be conducted in a 
manner that optimizes the surface area of the water observed. This may 
be accomplished through the use of the Navy's Search and Rescue Tactical 
Aid, which provides the best search altitude, ground speed, and track 
spacing for the discovery of small, possibly dark objects in the water 
based on the environmental conditions of the day. These environmental 
conditions include the angle of sun inclination, amount of daylight, 
cloud cover, visibility, and sea state.
    (2) All visual surveillance activities shall be conducted by Navy 
personnel trained in visual surveillance. At least one member of the 
mitigation team shall have completed the Navy's marine mammal training 
program for lookouts.
    (3) In addition to the overflights, the exclusion zone shall be 
monitored by passive acoustic means, when assets are available. This 
passive acoustic monitoring would be maintained throughout the exercise. 
Potential assets include sonobuoys, which can be utilized to detect any 
vocalizing marine mammals (particularly sperm whales) in the vicinity of 
the exercise. The sonobuoys shall be re-seeded as necessary throughout 
the exercise. Additionally, passive sonar onboard submarines may be 
utilized to detect any vocalizing marine mammals in the area. The OCE 
would be informed of any aural detection of marine mammals and would 
include this information in the determination of when it is safe to 
commence the exercise.
    (4) On each day of the exercise, aerial surveillance of the 
exclusion and safety zones shall commence 2 hours prior to the first 
firing.
    (5) The results of all visual, aerial, and acoustic searches shall 
be reported immediately to the OCE. No weapons launches or firing may 
commence until the OCE declares the safety and exclusion zones free of 
marine mammals.
    (6) If a protected species observed within the exclusion zone is 
diving, firing shall be delayed until the animal is re-sighted outside 
the exclusion zone, or 30 minutes have elapsed. After 30 minutes, if the 
animal has not been re-sighted it would be assumed to have left the 
exclusion zone.
    (7) During breaks in the exercise of 30 minutes or more, the 
exclusion zone shall again be surveyed for any protected species. If 
marine mammals are sighted within the exclusion zone, the OCE shall be 
notified, and the procedure described in paragraph (a)(3)(x)(C)(6 ) of 
this section would be followed.
    (8) Upon sinking of the vessel, a final surveillance of the 
exclusion zone shall be monitored for 2 hours, or until sunset, to 
verify that no marine mammals were harmed.
    (D) Aerial surveillance shall be conducted using helicopters or 
other aircraft based on necessity and availability. The Navy has several 
types of aircraft capable of performing this task; however, not all 
types are available for every exercise. For each exercise, the available 
asset best suited for identifying objects on and near the surface of the 
ocean would be used. These aircraft would be capable of flying at the 
slow safe speeds necessary to enable viewing of marine vertebrates with 
unobstructed, or minimally obstructed, downward and outward visibility. 
The exclusion and safety zone surveys may be cancelled in the event that 
a mechanical problem, emergency search and rescue, or other similar and 
unexpected event preempts the use of one of the aircraft onsite for the 
exercise.
    (E) Where practicable, the Navy shall conduct the exercise in sea 
states that are ideal for marine mammal sighting, i.e., Beaufort Sea 
State 3 or less. In the event of a 4 or above, survey efforts shall be 
increased within the zones. This shall be accomplished through the use 
of an additional aircraft, if available, and conducting tight search 
patterns.
    (F) The exercise shall not be conducted unless the exclusion zone 
can be adequately monitored visually.
    (G) In the event that any marine mammals are observed to be harmed 
in the area, a detailed description of the animal shall be taken, the 
location noted, and if possible, photos taken. This information shall be 
provided to NMFS via the Navy's regional environmental coordinator for 
purposes of

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identification (see the Stranding Plan for detail).
    (H) An after action report detailing the exercise's time line, the 
time the surveys commenced and terminated, amount, and types of all 
ordnance expended, and the results of survey efforts for each event 
shall be submitted to NMFS.
    (xi) Extended Echo Ranging/Improved Extended Echo Ranging (EER/IEER/
AEER):
    (A) Crews shall conduct visual reconnaissance of the drop area prior 
to laying their intended sonobuoy pattern. This search shall be 
conducted at an altitude below 457 m (500 yd) at a slow speed, if 
operationally feasible and weather conditions permit. In dual aircraft 
operations, crews are allowed to conduct coordinated area clearances.
    (B) For IEER (AN/SSQ-110A), crews shall conduct a minimum of 30 
minutes of visual and aural monitoring of the search area prior to 
commanding the first post detonation. This 30-minute observation period 
may include pattern deployment time.
    (C) For any part of the briefed pattern where a post (source/
receiver sonobuoy pair) will be deployed within 914 m (1,000 yd) of 
observed marine mammal activity, the Navy shall deploy the receiver ONLY 
and monitor while conducting a visual search. When marine mammals are no 
longer detected within 914 m (1,000 yd) of the intended post position, 
the Navy shall co-locate the explosive source sonobuoy (AN/SSQ-110A) 
(source) with the receiver.
    (D) When able, Navy crews shall conduct continuous visual and aural 
monitoring of marine mammal activity. This is to include monitoring of 
own-aircraft sensors from first sensor placement to checking off station 
and out of RF range of these sensors.
    (E) Aural Detection--If the presence of marine mammals is detected 
aurally, then that shall cue the Navy aircrew to increase the diligence 
of their visual surveillance. Subsequently, if no marine mammals are 
visually detected, then the crew may continue multi-static active 
search.
    (F) Visual Detection--If marine mammals are visually detected within 
914 m (1,000 yd) of the explosive source sonobuoy (AN/SSQ-110A) intended 
for use, then that payload shall not be detonated. Aircrews may utilize 
this post once the marine mammals have not been re-sighted for 30 
minutes, or are observed to have moved outside the 914 m (1,000 yd) 
safety buffer. Aircrews may shift their multi-static active search to 
another post, where marine mammals are outside the 914 m (1,000 yd) 
safety buffer.
    (G) For IEER (AN/SSQ-110A), aircrews shall make every attempt to 
manually detonate the unexploded charges at each post in the pattern 
prior to departing the operations area by using the ``Payload 1 
Release'' command followed by the ``Payload 2 Release'' command. 
Aircrews shall refrain from using the ``Scuttle'' command when two 
payloads remain at a given post. Aircrews will ensure that a 914 m 
(1,000 yd) safety buffer, visually clear of marine mammals, is 
maintained around each post as is done during active search operations.
    (H) Aircrews shall only leave posts with unexploded charges in the 
event of a sonobuoy malfunction, an aircraft system malfunction, or when 
an aircraft must immediately depart the area due to issues such as fuel 
constraints, inclement weather, and in-flight emergencies. In these 
cases, the sonobuoy will self-scuttle using the secondary or tertiary 
method.
    (I) The Navy shall ensure all payloads are accounted for. Explosive 
source sonobuoys (AN/SSQ-110A) that can not be scuttled shall be 
reported as unexploded ordnance via voice communications while airborne, 
then upon landing via naval message.
    (J) Marine mammal monitoring shall continue until out of own-
aircraft sensor range.
    (4) The Navy shall abide by the letter of the ``Stranding Response 
Plan for Major Navy Training Exercises in the SOCAL Range Complex'' 
(available at: http://www.nmfs.noaa.gov/pr/permits/incidental.htm), 
which is incorporated herein by reference, to include the following 
measures:
    (i) Shutdown Procedures--When an Uncommon Stranding Event (USE--
defined in Sec. 216.271) occurs during a Major Training Exercise (MTE) 
(as defined in the Stranding Plan, meaning including Sustainment, 
SHAREM, IAC2, JTFEX,

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or COMPTUEX) in the SOCAL Range Complex, the Navy shall implement the 
procedures described below.
    (A) The Navy shall implement a Shutdown (as defined Sec. 216.271) 
when advised by a NMFS Office of Protected Resources Headquarters Senior 
Official designated in the SOCAL Range Complex Stranding Communication 
Protocol that a USE involving live animals has been identified and that 
at least one live animal is located in the water. NMFS and Navy shall 
communicate, as needed, regarding the identification of the USE and the 
potential need to implement shutdown procedures.
    (B) Any shutdown in a given area shall remain in effect in that area 
until NMFS advises the Navy that the subject(s) of the USE at that area 
die or are euthanized, or that all live animals involved in the USE at 
that area have left the area (either of their own volition or herded).
    (C) If the Navy finds an injured or dead marine mammal floating at 
sea during an MTE, the Navy shall notify NMFS immediately or as soon as 
operational security considerations allow. The Navy shall provide NMFS 
with species or description of the animal(s), the condition of the 
animal(s) including carcass condition if the animal(s) is/are dead), 
location, time of first discovery, observed behaviors (if alive), and 
photo or video (if available). Based on the information provided, NMFS 
shall determine if, and advise the Navy whether a modified shutdown is 
appropriate on a case-by-case basis.
    (D) In the event, following a USE, that: (a) Qualified individuals 
are attempting to herd animals back out to the open ocean and animals 
are not willing to leave, or (b) animals are seen repeatedly heading for 
the open ocean but turning back to shore, NMFS and the Navy shall 
coordinate (including an investigation of other potential anthropogenic 
stressors in the area) to determine if the proximity of MFAS/HFAS 
activities or explosive detonations, though farther than 14 nm from the 
distressed animal(s), is likely decreasing the likelihood that the 
animals return to the open water. If so, NMFS and the Navy shall further 
coordinate to determine what measures are necessary to further minimize 
that likelihood and implement those measures as appropriate.
    (ii) Within 72 hours of NMFS notifying the Navy of the presence of a 
USE, the Navy shall provide available information to NMFS (per the SOCAL 
Range Complex Communication Protocol) regarding the location, number and 
types of acoustic/explosive sources, direction and speed of units using 
MFAS/HFAS, and marine mammal sightings information associated with 
training activities occurring within 80 nm (148 km) and 72 hours prior 
to the USE event. Information not initially available regarding the 80 
nm (148 km), 72 hours, period prior to the event shall be provided as 
soon as it becomes available. The Navy shall provide NMFS investigative 
teams with additional relevant unclassified information as requested, if 
available.
    (iii) Memorandum of Agreement (MOA)--The Navy and NMFS shall develop 
a MOA, or other mechanism consistent with federal fiscal law 
requirements (and all other applicable laws), that will establish a 
framework whereby the Navy can (and provide the Navy examples of how 
they can best) assist NMFS with stranding investigations in certain 
circumstances.



Sec. 216.275  Requirements for monitoring and reporting.

    (a) As outlined in the SOCAL Range Complex Stranding Communication 
Plan, the Navy must notify NMFS immediately (or as soon as clearance 
procedures allow) if the specified activity identified in Sec. 
216.270(c) is thought to have resulted in the mortality or injury of any 
marine mammals, or in any take of marine mammals not identified in Sec. 
216.272(c).
    (b) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the SOCAL Range 
Complex Monitoring Plan.
    (c) The Navy shall complete an Integrated Comprehensive Monitoring 
Plan (ICMP) in 2009. This planning and adaptive management tool shall 
include:
    (1) A method for prioritizing monitoring projects that clearly 
describes

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the characteristics of a proposal that factor into its priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection across Range 
Complexes.
    (d) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing MFAS, HFAS, or 
underwater explosive detonations. The Navy 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). The Navy shall consult the Stranding Response Plan to obtain 
more specific reporting requirements for specific circumstances.
    (e) Annual SOCAL Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on October 1 describing the 
implementation and results (through August 1 of the same year) of the 
SOCAL Range Complex Monitoring Plan. Data collection methods will be 
standardized across range complexes to allow for comparison in different 
geographic locations. Although additional information will also be 
gathered, the marine mammal observers (MMOs) collecting marine mammal 
data pursuant to the SOCAL Range Complex Monitoring Plan shall, at a 
minimum, provide the same marine mammal observation data required in the 
data required in Sec. 216.275(f)(1). The SOCAL Range Complex Monitoring 
Plan Report may be provided to NMFS within a larger report that includes 
the required Monitoring Plan Reports from multiple Range Complexes.
    (f) Annual SOCAL Range Complex Exercise Report--The Navy shall 
submit an Annual SOCAL Range Complex Exercise Report on October 1 of 
every year (covering data gathered through August 1 of the same year). 
This report shall contain information identified in Sec. 216.275(f)(1) 
through (5).
    (1) MFAS/HFAS Major Training Exercises--This section shall contain 
the following information for Integrated, Coordinated, and Major 
Training Exercises (MTEs), which include Ship ASW Readiness and 
Evaluation Measuring (SHAREM), Sustainment Exercises, Integrated ASW 
Course Phase II (IAC2), Composite Training Unit Exercises (COMPTUEX), 
and Joint Task Force Exercises (JTFEX) conducted in the SOCAL Range 
Complex:
(i) Exercise Information (for each MTE):
    (A) Exercise designator
    (B) Date that exercise began and ended
    (C) Location
    (D) Number and types of active sources used in the exercise
    (E) Number and types of passive acoustic sources used in exercise
    (F) Number and types of vessels, aircraft, etc., participating in 
exercise
    (G) Total hours of observation by watchstanders
    (H) Total hours of all active sonar source operation
    (I) Total hours of each active sonar source (along with explanation 
of how hours are calculated for sources typically quantified in 
alternate way (buoys, torpedoes, etc.)).
    (J) Wave height (high, low, and average during exercise)
(ii) Individual marine mammal sighting info (for each sighting in each 
MTE)
    (A) Location of sighting
    (B) Species (if not possible--indication of whale/dolphin/pinniped)
    (C) Number of individuals
    (D) Calves observed (y/n)
    (E) Initial Detection Sensor
    (F) Indication of specific type of platform observation made from 
(including, for example, what type of

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surface vessel, i.e., FFG, DDG, or CG)
    (G) Length of time observers maintained visual contact with marine 
mammal
    (H) Wave height (in feet)
    (I) Visibility
    (J) Sonar source in use (y/n).
    (K) Indication of whether animal is < 200 yd, 200-500 yd, 500-1000 
yd, 1000-2000 yd, or  2000 yd from sonar source in paragraph 
(f)(1)(ii)(J) of this section.
    (L) Mitigation Implementation--Whether operation of sonar sensor was 
delayed, or sonar was powered or shut down, and how long the delay was.
    (M) If source in use (i.e., in paragraph (f)(1)(ii)(J) of this 
section) is hull-mounted, true bearing of animal from ship, true 
direction of ship's travel, and estimation of animal's motion relative 
to ship (opening, closing, parallel)
    (N) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animals (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming, etc.)
(iii) An evaluation (based on data gathered during all of the MTEs) of 
the effectiveness of mitigation measures designed to avoid exposing 
marine mammals to mid-frequency sonar. This evaluation shall identify 
the specific observations that support any conclusions the Navy reaches 
about the effectiveness of the mitigation.
    (2) ASW Summary--This section shall include the following 
information as summarized from both MTEs and non-major training 
exercises (unit-level exercises, such as TRACKEXs):
    (i) Total annual hours of each type of sonar source (along with 
explanation of how hours are calculated for sources typically quantified 
in alternate way (buoys, torpedoes, etc.))
    (ii) Cumulative Impact Report--To the extent practicable, the Navy, 
in coordination with NMFS, shall develop and implement a method of 
annually reporting non-major (i.e., other than MTEs) training exercises 
utilizing hull-mounted sonar. The report shall present an annual (and 
seasonal, where practicable) depiction of non-major training exercises 
geographically across the SOCAL Range Complex. The Navy shall include 
(in the SOCAL Range Complex annual report) a brief annual progress 
update on the status of the development of an effective and unclassified 
method to report this information until an agreed-upon (with NMFS) 
method has been developed and implemented.
    (3) SINKEXs--This section shall include the following information 
for each SINKEX completed that year:
(i) Exercise information (gathered for each SINKEX):
    (A) Location
    (B) Date and time exercise began and ended
    (C) Total hours of observation by watchstanders before, during, and 
after exercise
    (D) Total number and types of rounds expended / explosives detonated
    (E) Number and types of passive acoustic sources used in exercise
    (F) Total hours of passive acoustic search time
    (G) Number and types of vessels, aircraft, etc., participating in 
exercise
    (H) Wave height in feet (high, low and average during exercise)
    (I) Narrative description of sensors and platforms utilized for 
marine mammal detection and timeline illustrating how marine mammal 
detection was conducted
(ii) Individual marine mammal observation (by Navy lookouts) information 
(gathered for each marine mammal sighting)
    (A) Location of sighting
    (B) Species (if not possible, indicate whale, dolphin or pinniped)
    (C) Number of individuals
    (D) Whether calves were observed
    (E) Initial detection sensor
    (F) Length of time observers maintained visual contact with marine 
mammal
    (G) Wave height
    (H) Visibility
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after

[[Page 144]]

    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated)--use four categories to define distance:
    (1) The modeled injury threshold radius for the largest explosive 
used in that exercise type in that OPAREA (738 m for SINKEX in the SOCAL 
Range Complex);
    (2) The required exclusion zone (1 nm for SINKEX in the SOCAL Range 
Complex);
    (3) The required observation distance (if different than the 
exclusion zone (2 nm for SINKEX in the SOCAL Range Complex); and
    (4) Greater than the required observed distance. For example, in 
this case, the observer would indicate if < 738 m, from 738 m to 1 nm, 
from 1 nm to 2 nm, and  2 nm.
    (K) Observed behavior--Watchstanders will report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction.
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long.
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (4) IEER Summary--This section shall include an annual summary of 
the following IEER information:
    (i) Total number of IEER events conducted in the SOCAL Range Complex
    (ii) Total expended/detonated rounds (buoys)
    (iii) Total number of self-scuttled IEER rounds
    (5) Explosives Summary--To the extent practicable, the Navy will 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they will provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (i) Total annual number of each type of explosive exercises (of 
those identified as part of the ``specified activity'' in this final 
rule) conducted in the SOCAL Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (g) Sonar Exercise Notification--The Navy shall submit to the NMFS 
Office of Protected Resources (specific contact information to be 
provided in LOA) either an electronic (preferably) or verbal report 
within fifteen calendar days after the completion of any MTE 
(Sustainment, IAC2, SHAREM, COMPTUEX, or JTFEX) indicating:
    (1) Location of the exercise
    (2) Beginning and end dates of the exercise
    (3) Type of exercise (e.g., SHAREM, JTFEX, etc.)
    (h) SOCAL Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during ASW and explosive 
exercises for which annual reports are required (Annual SOCAL Range 
Complex Exercise Reports and SOCAL Range Complex Monitoring Plan 
Reports). This report will be submitted at the end of the fourth year of 
the rule (November 2012), covering activities that have occurred through 
June 1, 2012
    (i) Comprehensive National ASW Report--By June, 2014, the Navy shall 
submit a draft National Report that analyzes, compares, and summarizes 
the active sonar data gathered (through January 1, 2014) from the 
watchstanders and pursuant to the implementation of the Monitoring Plans 
for the SOCAL Range Complex, the Atlantic Fleet Active Sonar Training, 
the HRC, the Marianas Range Complex, the Northwest Training Range, the 
Gulf of Alaska, and the East Coast Undersea Warfare Training Range.

[[Page 145]]

    (j) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the SOCAL Range Complex 
Comprehensive Report, the Comprehensive National ASW report, the Annual 
SOCAL Range Complex Exercise Report, or the Annual SOCAL Range Complex 
Monitoring Plan Report (or the multi-Range Complex Annual Monitoring 
Plan Report, if that is how the Navy chooses to submit the information) 
if submitted within 3 months of receipt. These reports will be 
considered final after the Navy has addressed NMFS' comments or provided 
the requested information, or three months after the submittal of the 
draft if NMFS does not comment by then.
    (k) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 216.276  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. 216.103) conducting 
the activity identified in Sec. 216.270(c) (the U.S. Navy) must apply 
for and obtain either an initial Letter of Authorization in accordance 
with Sec. 216.277 or a renewal under Sec. 216.278.



Sec. 216.277  Letters of Authorization.

    (a) A Letter of Authorization, unless suspended or revoked, will be 
valid for a period of time not to exceed the period of validity of this 
subpart, but must be renewed annually subject to annual renewal 
conditions in Sec. 216.278.
    (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. 216.278  Renewal of Letters of Authorization and Adaptive Management.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
216.277 for the activity identified in Sec. 216.270(c) will be renewed 
annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 216.276 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 (by the dates indicated in these regulations) of 
the monitoring reports required under Sec. 216.275(c) through (j); and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 216.274 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 216.277, were 
undertaken and will be undertaken during the upcoming annual period of 
validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 216.278 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. 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

[[Page 146]]

    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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 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 Navy's monitoring from the previous year 
(either from the SOCAL Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec. 216.275(l)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 216.275(d)).
    (4) Results from specific stranding investigations (either from the 
SOCAL Range Complex or other locations, and involving coincident MFAS/
HFAS or explosives training or not involving coincident use).
    (5) Results from the Long Term Prospective Study described in the 
preamble to these regulations.
    (6) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).



Sec. 216.279  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 
and 216.277 and subject to the provisions of this subpart shall be made 
until after notification and an opportunity for public comment has been 
provided. For purposes of this paragraph, a renewal of a Letter of 
Authorization under Sec. 216.278, without modification (except for the 
period of validity), is not considered a substantive modification.
    (b) If the Assistant Administrator determines that an emergency 
exists that poses a significant risk to the well-being of the species or 
stocks of marine mammals specified in Sec. 216.272(c), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 216.277 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.

                           PART 217 [RESERVED]



PART 217_REGULATIONS GOVERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO 

SPECIFIED ACTIVITIES--Table of Contents




Subparts A-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.
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.

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

    Source: 74 FR 35143, July 20, 2009, unless otherwise noted.

Subparts A-T [Reserved]

[[Page 147]]



 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 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

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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 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

[[Page 149]]

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:
    (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.

[[Page 150]]

    (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.



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

[[Page 151]]

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 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.



PART 218_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS--

Table of Contents




Subpart A_Taking Marine Mammals Incidental to U.S. Navy Training in the 
          Virginia Capes Range Complex (VACAPES Range Complex)

Sec.
218.1 Specified activity, specified geographical area and effective 
          dates.
218.2 Permissible methods of taking.
218.3 Prohibitions.
218.4 Mitigation.
218.5 Requirements for monitoring and reporting.
218.6 Applications for Letters of Authorization.
218.7 Letters of Authorization.
218.8 Renewal of Letters of Authorization and adaptive management.
218.9 Modifications to Letters of Authorization.

Subpart B_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Jacksonville Range Complex

218.10 Specified activity and specified geographical area and effective 
          dates.
218.11 Permissible methods of taking.
218.12 Prohibitions.
218.13 Mitigation.
218.14 Requirements for monitoring and reporting.
218.15 Applications for Letters of Authorization.
218.16 Letters of Authorization.
218.17 Renewal of Letters of Authorization and adaptive management.
218.18 Modifications to Letters of Authorization.

Subpart C_Taking Marine Mammals Incidental to U.S. Navy Training in the 
                       Cherry Point Range Complex

218.20 Specified activity and specified geographical area and effective 
          dates.
218.21 Permissible methods of taking.
218.22 Prohibitions.
218.23 Mitigation.
218.24 Requirements for monitoring and reporting.
218.25 Applications for Letters of Authorization.
218.26 Letters of Authorization.
218.27 Renewal of Letters of Authorization and adaptive management.
218.28 Modifications to Letters of Authorization.

    Authority: 16 U.S.C. 1361 et seq.

    Source: 74 FR 28343, June 15, 2009, unless otherwise noted.



Subpart A_Taking Marine Mammals Incidental to U.S. Navy Training in the 

          Virginia Capes Range Complex (VACAPES Range Complex)



Sec. 218.1  Specified activity, specified geographical area and effective 

dates.

    (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 occur incidental to the activities 
described in paragraph (c) of this section.

[[Page 152]]

    (b) The taking of marine mammals by the Navy is only authorized if 
it occurs within the VACAPES Range Complex Operation Area (OPAREA), 
which is located in the coastal and offshore waters of the western North 
Atlantic Ocean adjacent to Delaware, Maryland, Virginia, and North 
Carolina. The northernmost boundary of the VACAPES Range Complex OPAREA 
is located 37 nautical miles (nm) off the entrance to Delaware Bay at 
latitude 38[deg]45[min] N, the farthest point of the eastern boundary is 
184 nm east of Chesapeake Bay at longitude 72[deg]41[min] W, and the 
southernmost point is 105 nm southeast of Cape Hatteras, North Carolina, 
at latitude of 34[deg]19[min] N. The western boundary of the VACAPES 
Range Complex OPAREA lies 3 nm from the shoreline at the boundary 
separating state and Federal waters.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The detonation of the underwater explosives indicated in 
paragraph (c)(1)(i) of this section conducted as part of the training 
events indicated in paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile)
    (B) AGM-65 E/F (Maverick missile)
    (C) MK-83/GBU-32 (1,000 lb High Explosive bomb)
    (D) Airgorne Mine Neutralization system (AMNS)
    (E) 20 lb NEW charges
    (F) AGM-88 (HARM)
    (G) 5[sec] Naval Gunfire
    (ii) Training Events:
    (A) Mine Exercise (MINEX) (Mine Neutralization [AMNS])--up to 150 
exercises over the course of 5 years (an average of 30 per year);
    (B) Mine Exercise (MINEX) (Mine Neutralization [20 lb NEW 
charges])--up to 120 exercises over the course of 5 years (an average of 
24 per year);
    (C) Bombing Exercise (BOMBEX) (Air-to-Surface)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (D) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 300 exercises over the course of 5 years (an average of 60 per 
year);
    (E) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick, HE)--up 
to 100 exercises over the course of 5 years (an average of 20 per year); 
and
    (F) FIREX with IMPASS--up to 110 exercises over the course of 5 
years (an average of 22 per year).
    (2) [Reserved]
    (d) Regulations are effective June 8, 2009 and are applicable to the 
Navy on June 5, 2009 through June 4, 2014.



Sec. 218.2  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. 216.106 
of this chapter and Sec. 218.7, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec. 218.1(b), 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. 218.1(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. 218.1(c) is limited to the following species, by the 
indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Mysticetes:
    (A) Humpback whale (Megaptera novaeangliae)--10 (an average of 2 
annually); and
    (B) Fin whale (Balaenoptera physalus)--10 (an average of 2 
annually).
    (ii) Odontocetes:
    (A) Sperm whale (Physeter macrocephalus)--10 (an average of 2 
annually);
    (B) Pygmy or dwarf sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (C) Rough-toothed dolphin (Steno bredanensis)--5 (an average of 1 
annually);
    (D) Bottlenose dolphin (Tursiops truncatus)--145 (an average of 29 
annually);
    (E) Pantropical spotted dolphin (Stenella attenuata)--350 (an 
average of 70 annually);

[[Page 153]]

    (F) Striped dolphin (S. coeruleoalba)--340 (an average of 68 
annually);
    (G) Clymene dolphin (S. clymene)--165 (an average of 33 annually);
    (H) Atlantic spotted dolphin (S. frontalis)--215 (an average of 43 
annually);
    (I) Common dolphin (Delphinus delphis)--10,965 (an average of 2,193 
annually);
    (J) Risso's dolphin (Grampus griseus)--80 (an average of 16 
annually); and
    (K) Pilot whales (Globicephala sp.)--50 (an average of 10 annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--5 (an average of 1 annually);
    (ii) Common dolphin--100 (an average of 20 annually);
    (iii) Pantropical spotted dolphin--5 (an average of 1 annually); and
    (iv) Striped dolphin--15 (an average of 3 annually).



Sec. 218.3  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.2 and authorized 
by a Letter of Authorization issued under Sec. 216.106 of this chapter 
and Sec. 218.7, no person in connection with the activities described 
in Sec. 218.1 may:
    (a) Take any marine mammal not specified in Sec. 218.2(c);
    (b) Take any marine mammal specified in Sec. 218.2(c) other than by 
incidental take as specified in Sec. 218.2(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 218.2(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. 216.106 of this chapter and Sec. 218.7.



Sec. 218.4  Mitigation.

    (a) When conducting training activities identified in Sec. 
218.1(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec. 216.106 of this chapter and Sec. 218.7 
must be implemented. These mitigation measures include, but are not 
limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of

[[Page 154]]

the corners of their eyes, paying attention to the things on the outer 
edges of their field of vision. Lookouts shall also have night vision 
devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' so that the vessel can 
take proper and effective action to avoid a collision with any marine 
animal and can be stopped within a distance appropriate to the 
prevailing circumstances and conditions.
    (G) When whales have been sighted in the area, Navy vessels shall 
increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements. (i) The Navy shall 
coordinate with the local NMFS Stranding Coordinator for any unusual 
marine mammal behavior and any stranding, beached live/dead, or floating 
marine mammals that may occur at any time during or within 24 hours 
after completion of training activities.
    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.

[[Page 155]]

    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the VACAPES Range 
Complex.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety (at a speed 
that does not compromise safety of navigation) during the months 
indicated below and within a 37 km (20 nm) arc (except as noted) of the 
specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15-April 15 and also apply to an associated 
area of concern which extends 9 km (5 NM) seaward of the designated 
critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information needed to make informed decisions regarding safe speed 
(the minimum speed at which mission goals or safety will not be 
compromised) and path of intended movement. Subs shall contact 
Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessels must reduce speed to a minimum at which it can safely 
keep on course or vessels could come to an all stop.

[[Page 156]]

    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 69-
05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. 
lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The 
Cape Cod Bay critical habitat is defined by the following coordinates: 
42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-
15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] 
N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos were taken. Navy personnel are encouraged to 
take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the death),

[[Page 157]]

the Navy shall suspend its activities immediately and report the 
incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in. Explosive Rounds):
    (A) FIREX using IMPASS would only be conducted in the four 
designated areas specified in the Navy's LOA application in the VACAPES 
Range Complex.
    (B) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall be 
required to maintain a lookout dedicated to visually searching for 
marine mammals 180[deg] along the ship track line and 360[deg] at each 
buoy drop-off location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 600 yd (548 
m) buffer zone around the target area for marine mammals during naval-
gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (E) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) FIREX with IMPASS shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface At-Sea Bombing Exercises (250-lbs to 2,000-lbs 
explosive bombs):
    (A) Aircraft shall visually survey the target and buffer zone for 
marine mammals prior to and during the exercise. The survey of the 
impact area shall be made by flying at 1,500 ft (457 m) altitude or 
lower, if safe to do so, and at the slowest safe speed.
    (B) A buffer zone of 5,100-yd (4,663 m) radius shall be established 
around the intended target zone. The exercises shall be conducted only 
when marine mammals are observed to be outside the buffer zone.
    (C) At-sea BOMBEXs using live ordnance shall occur during daylight 
hours only.
    (iii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammal transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iv) Mine Neutralization Training Involving Underwater Detonations 
(up to 20-lb charges):
    (A) This activity shall only occur in W-50 of the VACAPES Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.
    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine

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mammals and shall report any sightings to the surface observers. These 
animals shall be allowed to leave of their own volition and the ZOI 
shall be clear of marine mammals for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet (Chesapeake Bay Inlets).
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.
    (b) [Reserved]



Sec. 218.5  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. 216.106 of this chapter and Sec. 218.7 for activities described 
in Sec. 218.1(c) is required to cooperate with the NMFS when monitoring 
the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified in Sec. 218.1(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified in Sec. 218.2(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the VACAPES 
Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below.
    (1) Vessel or aerial surveys. (i) The Holder of this Authorization 
shall visually survey a minimum of 2 explosive events per year, one of 
which shall be a multiple detonation event. One of the vessel or aerial 
surveys should involve professionally trained marine mammal observers 
(MMOs).
    (ii) Where operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys the towed array shall be deployed during daylight hours for each 
of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-

[[Page 159]]

based systematic line-transect surveys (particularly for species such as 
beaked whales that are rarely seen).
    (iii) The array shall have the capability of detecting low frequency 
vocalizations (<1,000 Hz) for baleen whales and relatively high 
frequency (up to 30 kHz) for odontocetes. The use of two simultaneously 
deployed arrays can also allow more accurate localization and 
determination of diving patterns.
    (3) Marine mammal observers on Navy platforms. (i) As required in 
Sec. 218.5(c)(1), MMOs selected for aerial or vessel survey shall be 
placed on a Navy platform during one of the explosive exercises being 
monitored per year, the other designated exercise shall be monitored by 
the Navy lookouts/watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs be the same as those collected 
by Navy lookout/watchstanders described in Sec. 218.5(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for VACAPES Range 
Complex and across range complexes.
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing underwater 
explosive detonations. The Navy 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).
    (f) Annual VACAPES Range Complex Monitoring Plan Report--The Navy 
shall submit a report annually on March 1 describing the implementation 
and results (through January 1 of the same year) of the VACAPES Range 
Complex Monitoring Plan. Data collection methods shall be standardized 
across range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the VACAPES Range Complex 
Monitoring Plan shall, at a minimum,

[[Page 160]]

provide the same marine mammal observation data required in the data 
required in Sec. 218.5(g). The VACAPES Range Complex Monitoring Plan 
Report may be provided to NMFS within a larger report that includes the 
required Monitoring Plan Reports from VACAPES Range Complex and multiple 
range complexes.
    (g) Annual VACAPES Range Complex Exercise Report--The Navy shall 
provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the VACAPES Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) VACAPES Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during the VACAPES Range 
Complex exercises for which annual reports are required (Annual VACAPES 
Range Complex Exercise Reports and VACAPES Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (May 2013), covering activities that have occurred through 
December 1, 2012.
    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the VACAPES Range Complex 
Comprehensive Report, the Annual VACAPES Range Complex Exercise Report, 
or the Annual VACAPES Range Complex Monitoring Plan Report (or the 
multi-Range Complex Annual Monitoring Plan Report, if that is how the 
Navy chooses to submit the information) if submitted within 3 months of 
receipt. These reports shall be considered final after the Navy has 
addressed NMFS' comments or provided the requested information, or three 
months after the submittal of the draft if NMFS does not comment by 
then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 218.6  Applications for Letters of Authorization.

    To incidentally take marine mammals pursuant to these regulations in 
this subpart, the U.S. citizen (as defined by Sec. 216.103) conducting 
the activity identified in Sec. 218.1(c) (the U.S. Navy) must apply for 
and obtain either an initial Letter of Authorization in accordance with 
Sec. 218.7 or a renewal under Sec. 218.8.



Sec. 218.7  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. 218.8.
    (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. 218.8  Renewal of Letters of Authorization and adaptive management.

    (a) A Letter of Authorization issued under Sec. 216.106 of this 
chapter and Sec. 218.7 for the activity identified in Sec. 218.1(c) 
will be renewed annually upon:

[[Page 161]]

    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 218.6 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. 
218.5(c) through (i); and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 218.4 and the Letter of 
Authorization issued under Sec. 216.106 of this chapter and Sec. 
218.7, were undertaken and will be undertaken during the upcoming annual 
period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. 216.106 of this chapter and Sec. 218.8 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. Review 
and comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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 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 Navy's monitoring from the previous year 
(either from VACAPES Range Complex or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec. 218.5(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 218.5(d)).
    (4) Results from specific stranding investigations (either from the 
VACAPE Range Complex Study Area or other locations, and involving 
coincident explosives training or not involving coincident use).
    (5) Results from general marine mammal and sound research (funded by 
the Navy or otherwise).
    (6) 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. 218.9  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. 216.106 of 
this chapter and Sec. 218.7 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. 218.8, 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. 218.2(c), a Letter of 
Authorization issued pursuant to Sec. 216.106 of this chapter and Sec. 
218.7 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.

[[Page 162]]



Subpart B_Taking Marine Mammals Incidental to U.S. Navy Training in the 

             Jacksonville Range Complex (JAX Range Complex)

    Source: 74 FR 28365, June 15, 2009, unless otherwise noted.



Sec. 218.10  Specified activity and specified geographical area and effective 

dates.

    (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 occur 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 JAX Range Complex Operation Areas (OPAREAs), which 
are located along the southern east coast of the U.S. The two principal 
OPAREAs within the JAX Study Area are the Jacksonville OPAREA and the 
Charleston OPAREA (sometimes referred to collectively as the JAX/CHASN 
OPAREA, or simply the OPAREA). The northernmost point of the JAX/CHASN 
OPAREA is located just north of Wilmington, North Carolina 
(34[deg]37[min] N) in waters less than 20 m (65.6 ft) deep, while the 
easternmost boundary lies 281 nm (518.6 km) offshore of Jacksonville, 
Florida (77[deg]00[min] W in waters with a bottom depth of nearly 2,000 
m [1.243 mi]).
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The detonation of the underwater explosives indicated in 
paragraph (c)(1)(i) of this section conducted as part of the training 
events indicated in paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) AGM-65 E/F (Maverick missile);
    (C) Mine Neutralization (20 lb NEW charges);
    (D) 5[sec] Naval Gunfire;
    (E) MK3A2 anti-swimmer concussion grenades.
    (ii) Training Events:
    (A) Mine Neutralization (20 lb NEW charges)--up to 60 exercises over 
the course of 5 years (an average of 12 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 350 exercises over the course of 5 years (an average of 70 per 
year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; Maverick)--up to 15 
exercises over the course of 5 years (an average of 3 per year);
    (D) FIREX with IMPASS--up to 50 exercises over the course of 5 years 
(an average of 10 per year); and
    (E) Small Arms Training with MK3A2 anti-swimmer concussion grenade 
(0.5 lbs NEW)--up to 400 grenades over the course of 5 years (an average 
of 80 HE grenades used per year).
    (2) [Reserved]
    (d) Regulations are effective June 8, 2009 and are applicable to the 
Navy on June 5, 2009 through June 4, 2014.



Sec. 218.11  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 of this chapter and 218.16, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec. 218.10(b), 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. 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 the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually);
    (iii) Clymene dolphin (S. clymene)--100 (an average of 20 annually);

[[Page 163]]

    (iv) Atlantic spotted dolphin (S. frontalis)--310 (an average of 62 
annually);
    (v) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (vi) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (vii) Common dolphin (Delphinus delphis)--150 (an average of 30 
annually);
    (viii) Pilot whales (Globicephala sp.)--100 (an average of 20 
annually);
    (ix) Dwarf or pygmy sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (x) Beaked whales--100 (an average of 20 annually);
    (xi) Minke whales (Balaenoptera acutorostrata)--15 (an average of 3 
annually).
    (2) Level A Harassment (injury):
    (i) Atlantic spotted dolphin--10 (an average of 2 annually).
    (ii) [Reserved]



Sec. 218.12  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.11 and authorized 
by a Letter of Authorization issued under Sec. 216.106 of this chapter 
and Sec. 218.16, no person in connection with the activities described 
in Sec. 218.10 may:
    (a) Take any marine mammal not specified in Sec. 218.11(c);
    (b) Take any marine mammal specified in Sec. 218.11(c) other than 
by incidental take as specified in Sec. 218.11(c)(1) and (2);
    (c) Take a marine mammal specified in Sec. 218.11(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. 216.106 of this chapter and Sec. 218.16.



Sec. 218.13  Mitigation.

    (a) When conducting training activities identified in Sec. 
218.10(c), the mitigation measures contained in the Letter of 
Authorization issued under Sec. 216.106 of this chapter and Sec. 
218.16 must be implemented. These mitigation measures include, but are 
not limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of

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the corners of their eyes, paying attention to the things on the outer 
edges of their field of vision. Lookouts shall also have night vision 
devices available for use.
    (ii) Operating Procedures & Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200 yds (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements:
    (i) The Navy shall coordinate with the local NMFS Stranding 
Coordinator for any unusual marine mammal behavior and any stranding, 
beached live/dead, or floating marine mammals that may occur at any time 
during or within 24 hours after completion of training activities.

[[Page 165]]

    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the JAX Range Complex 
OPAREA.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed consistent with mission and safety during the 
months indicated below and within a 37 km (20 nm) arc (except as noted) 
of the specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15--April 15 and also apply to an associated 
area of concern which extends 9 km (5 NM) seaward of the designated 
critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern, ships shall contact Fleet Area Control and 
Surveillance Facility, Jacksonville, to obtain latest whale sighting and 
other information needed to make informed decisions regarding safe speed 
(the minimum speed at which mission goals or safety will not be 
compromised) and path of intended movement. Subs shall contact 
Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid North Atlantic right whale(s), speed reductions 
could mean vessels must reduce speed to a minimum at which it

[[Page 166]]

can safely keep on course or vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited, except for 
Precision Anchoring drills and the Shipboard Electronic System 
Evaluation Facility range that necessarily operate at slow, safe speed.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (6) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods of 
poor visibility, vessels shall operate as if in the vicinity of a 
recently reported NARW sighting.
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 69-
05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. 
lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The 
Cape Cod Bay critical habitat is defined by the following coordinates: 
42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-
15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] 
N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported immediately. This report shall 
include the date, time, and location of the strike; vessel course and 
speed; operations being conducted by the vessel; weather conditions, 
visibility, and sea state; description of the whale; narrative of 
incident; and indication of whether photos/videos were taken. Navy 
personnel are encouraged to take photos whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by

[[Page 167]]

a vessel or when the vessel is within 9 km (5 NM) of a reported new 
sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is injured or killed as a result of the proposed Navy 
training activities (e.g., instances in which it is clear that munitions 
explosions caused death), the Navy shall suspend its activities 
immediately and report such incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds):
    (A) This activity shall only occur in Areas BB and CC, as specified 
in the Navy's LOA application, in the JAX Range Complex.
    (B) During North Atlantic right whale calving season no explosive 
ordnance shall be used.
    (C) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain a lookout dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (D) ``Big Eyes'' on the ship shall be used to monitor a 600 yard 
(548 m) buffer zone for marine mammals during naval-gunfire events.
    (E) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600 yd (548 m) buffer zone until the 
area is cleared. If marine mammals are present, operations shall be 
suspended. Visual observation shall occur for approximately 45 minutes, 
or until the animal has been observed to have cleared the area and is 
heading away from the buffer zone.
    (F) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (G) FIREX with IMPASS shall take place during daylight hours only.
    (H) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (I) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (J) No firing shall occur if marine mammals are detected within 70 
yards (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammals transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) This activity shall only occur in Undet North and Undet South of 
the JAX Range Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever assets are available.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.

[[Page 168]]

    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine mammals 
for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet.
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.
    (iv) Small Arms Training--Explosive hand grenades (such as the MK3A2 
grenades):
    (A) Lookouts shall visually survey for marine mammals prior to and 
during exercise.
    (B) A 200 yd (182 m) radius buffer zone shall be established around 
the intended target. The exercises shall be conducted only if the buffer 
zone is clear of marine mammals.



Sec. 218.14  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. 216.106 of this chapter and Sec. 218.16 for activities described 
in Sec. 218.10(b) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified in Sec. 218.10(b) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified in Sec. 218.10(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the JAX Range 
Complex Monitoring Plan, which is incorporated herein by reference, and 
which requires the Navy to implement, at a minimum, the monitoring 
activities summarized below:
    (1) Vessel or aerial surveys:
    (i) The Holder of this Authorization shall visually survey a minimum 
of 2 explosive events per year, one of which shall be a multiple 
detonation event. One of the vessel or aerial surveys should involve 
professionally trained marine mammal observers (MMOs).
    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel-based 
surveys a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and

[[Page 169]]

    (M) If observation occurs while explosives are detonating in the 
water, indicate munition type in use at time of marine mammal detection.
    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys, the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array shall have the capability of detecting low frequency 
vocalizations (<1,000 Hz) for baleen whales and relatively high 
frequency (up to 30 kHz) for odontocetes. The use of two simultaneously 
deployed arrays can also allow more accurate localization and 
determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required in Sec. 218.14(c)(1), MMOs selected for aerial or 
vessel survey shall be placed on a Navy platform during one of the 
explosive exercises being monitored per year, the other designated 
exercise shall be monitored by the Navy lookouts/watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs shall be the same as those 
collected by Navy lookout/watchstanders described in Sec. 
218.14(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan.
    (5) A method for standardizing data collection for JAX Range Complex 
and across range complexes.
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing underwater 
explosive detonations. The Navy 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).
    (f) Annual JAX Range Complex Monitoring Plan Report--The Navy shall 
submit a report annually on March 1

[[Page 170]]

describing the implementation and results (through January 1 of the same 
year) of the JAX Range Complex Monitoring Plan. Data collection methods 
will be standardized across range complexes to allow for comparison in 
different geographic locations. Although additional information will 
also be gathered, the MMOs collecting marine mammal data pursuant to the 
JAX Range Complex Monitoring Plan shall, at a minimum, provide the same 
marine mammal observation data required in Sec. 218.14(g). The JAX 
Range Complex Monitoring Plan Report may be provided to NMFS within a 
larger report that includes the required Monitoring Plan Reports from 
JAX Range Complex and multiple range complexes.
    (g) Annual JAX Range Complex Exercise Report--The Navy shall provide 
the information described below for all of their explosive exercises. 
Until the Navy is able to report in full the information below, they 
shall provide an annual update on the Navy's explosive tracking methods, 
including improvements from the previous year.
    (i) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the JAX Range Complex.
    (ii) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) JAX Range Complex 5-yr Comprehensive Report--The Navy shall 
submit to NMFS a draft report that analyzes and summarizes all of the 
multi-year marine mammal information gathered during the JAX Range 
Complex exercises for which annual reports are required (Annual JAX 
Range Complex Exercise Reports and JAX Range Complex Monitoring Plan 
Reports). This report shall be submitted at the end of the fourth year 
of the rule (May 2013), covering activities that have occurred through 
December 1, 2012.
    (i) The Navy shall respond to NMFS' comments and requests for 
additional information or clarification on the JAX Range Complex 
Comprehensive Report, the Annual JAX Range Complex Exercise Report, or 
the Annual JAX Range Complex Monitoring Plan Report (or the multi-Range 
Complex Annual Monitoring Plan Report, if that is how the Navy chooses 
to submit the information) if submitted within 3 months of receipt. 
These reports will be considered final after the Navy has addressed 
NMFS' comments or provided the requested information, or three months 
after the submittal of the draft if NMFS does not comment by then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 218.15  Applications for Letters of Authorization.

    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. 218.10(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec. 218.16 or a renewal under Sec. 218.17.



Sec. 218.16  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. 218.17.
    (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

[[Page 171]]

negligible impact on the affected species or stock of marine mammal(s).



Sec. 218.17  Renewal of Letters of Authorization and adaptive management.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
218.16 of this chapter for the activity identified in Sec. 218.10(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 218.15 shall 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. 
218.14; and
    (3) A determination by NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 218.13 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 218.16 of this chapter 
were undertaken and will be undertaken during the upcoming annual period 
of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 218.17 of this chapter 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. Review 
and comment on renewals of Letters of Authorization are restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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 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 Navy's monitoring from the previous year 
(either from JAX Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec. 218.14(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 218.14(d)).
    (4) Results from specific stranding investigations (either from the 
JAX Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (6) 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. 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 
Letter of Authorization by NMFS, issued pursuant to Sec. 216.106 of 
this chapter and Sec. 218.16 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. 218.17, 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. 218.11(b), a Letter of 
Authorization issued pursuant to Sec. 216.106 of this chapter and Sec. 
218.16 may be substantively modified without prior notification and an 
opportunity for public comment. Notification will be published in the 
Federal Register

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within 30 days subsequent to the action.



Subpart C_Taking Marine Mammals Incidental to U.S. Navy Training in the 

                       Cherry Point Range Complex

    Source: 74 FR 28385, June 15, 2009, unless otherwise noted.



Sec. 218.20  Specified activity and specified geographical area and effective 

dates.

    (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 occur 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 Cherry Point Range Complex Operation Area (OPAREA), 
which is located along the southern east coast of the U.S., as stated in 
the Navy's letter of authorization application. The coordinates of the 
Cherry Point Range Complex OPAREA are: 35[deg]30[min] N, 75[deg]25[min] 
W; 34[deg]14[min] N, 73[deg]57[min] W; 32[deg]12[min] N, 76[deg]49[min] 
W; 32[deg]20[min] N, 77[deg]20[min] W; 33[deg]10[min] N, 77[deg]31[min] 
W; and 34[deg]23[min]30[sec] N, 77[deg]30[min] W; then along the 3 nm 
from and parallel to the shoreline.
    (c) The taking of marine mammals by the Navy is only authorized if 
it occurs incidental to the following activities within the designated 
amounts of use:
    (1) The detonation of the underwater explosives indicated in 
paragraph (c)(1)(i) of this section conducted as part of the training 
events indicated in paragraph (c)(1)(ii) of this section:
    (i) Underwater Explosives:
    (A) AGM-114 (Hellfire missile);
    (B) Tube-launched Optically tracked Wire-guided (TOW) missile;
    (C) Mine Neutralization (20 lb NEW charges); and
    (D) 5[sec] Naval Gunfire.
    (ii) Training Exercises:
    (A) Mine Neutralization (20 lb NEW charges)--up to 100 exercises 
over the course of 5 years (an average of 20 per year);
    (B) Missile Exercise (MISSILEX) (Air-to-Surface; Hellfire missile)--
up to 40 exercises over the course of 5 years (an average of 8 per 
year);
    (C) Missile Exercise (MISSILEX) (Air-to-Surface; TOW)--up to 40 
exercises over the course of 5 years (an average of 8 per year); and
    (D) FIREX with IMPASS--up to 10 exercises over the course of 5 years 
(an average of 2 per year).
    (2) [Reserved]
    (d) Regulations are effective [June 8, 2009] and are applicable to 
the Navy on June 5, 2009 through June 4, 2014.



Sec. 218.21  Permissible methods of taking.

    (a) Under Letters of Authorization issued pursuant to Sec. Sec. 
216.106 of this chapter and 218.26, the Holder of the Letter of 
Authorization may incidentally, but not intentionally, take marine 
mammals within the area described in Sec. 218.20(b), 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. 218.20(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. 218.20(c) is limited to the following species, by 
the indicated method of take and the indicated number of times:
    (1) Level B Harassment:
    (i) Bottlenose dolphin (Tursiops truncatus)--150 (an average of 30 
annually);
    (ii) Pantropical spotted dolphin (Stenella attenuata)--100 (an 
average of 20 annually);
    (iii) Clymene dolphin (S. clymene)--150 (an average of 30 annually);
    (iv) Atlantic spotted dolphin (S. frontalis)--100 (an average of 20 
annually);
    (v) Striped dolphin (S. coeruleoalba)--100 (an average of 20 
annually);
    (vi) Spinner dolphin (S. longirostris)--15 (an average of 3 
annually):
    (vii) Risso's dolphin (Grampus griseus)--150 (an average of 30 
annually);
    (viii) Common dolphin (Delphinus delphis)--100 (an average of 20 
annually);

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    (ix) Atlantic white-sided dolphin (Lagenorhynchus acutus)--100 (an 
average of 20 annually);
    (x) Pilot whales (Globicephala sp.)--100 (an average of 20 
annually);
    (xi) Dwarf or pygmy sperm whales (Kogia sp.)--15 (an average of 3 
annually);
    (xii) Beaked whales--100 (an average of 20 annually);
    (xiii) Fraser's dolphin (Lagenodelphis hosei)--15 (an average of 3 
annually);
    (xiv) Melon-headed whale (Peponocephala electra)--15 (an average of 
3 annually);
    (xv) Pygmy killer whale (Feresa attenuate)--15 (an average of 3 
annually);
    (xvi) Killer whale (Orcinus orca)--15 (an average of 3 annually);
    (xvii) Minke whales (Balaenoptera acutorostrata)--15 (an average of 
3 annually).
    (2) [Reserved]



Sec. 218.22  Prohibitions.

    Notwithstanding takings contemplated in Sec. 218.21 and authorized 
by a Letter of Authorization issued under Sec. Sec. 216.106 of this 
chapter and 218.26, no person in connection with the activities 
described in Sec. 218.20 may:
    (a) Take any marine mammal not specified in Sec. 218.21(c);
    (b) Take any marine mammal specified in Sec. 218.21(c) other than 
by incidental take as specified in Sec. 218.21(b)(1) and (2);
    (c) Take a marine mammal specified in Sec. 218.21(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 of this chapter and 218.26.



Sec. 218.23  Mitigation.

    (a) When conducting training activities identified in Sec. 
218.20(c), the mitigation measures contained in the Letters of 
Authorization issued under Sec. Sec. 216.106 of this chapter and 218.26 
must be implemented. These mitigation measures include, but are not 
limited to:
    (1) General Maritime Measures:
    (i) Personnel Training--Lookouts:
    (A) All bridge personnel, Commanding Officers, Executive Officers, 
officers standing watch on the bridge, maritime patrol aircraft 
aircrews, and Mine Warfare (MIW) helicopter crews shall complete Marine 
Species Awareness Training (MSAT).
    (B) Navy lookouts shall undertake extensive training to qualify as a 
watchstander in accordance with the Lookout Training Handbook (NAVEDTRA 
12968-D).
    (C) Lookout training shall include on-the-job instruction under the 
supervision of a qualified, experienced watchstander. Following 
successful completion of this supervised training period, lookouts shall 
complete the Personal Qualification Standard Program, certifying that 
they have demonstrated the necessary skills (such as detection and 
reporting of partially submerged objects).
    (D) Lookouts shall be trained in the most effective means to ensure 
quick and effective communication within the command structure to 
facilitate implementation of protective measures if marine species are 
spotted.
    (E) Surface lookouts shall scan the water from the ship to the 
horizon and be responsible for all contacts in their sector. In 
searching the assigned sector, the lookout shall always start at the 
forward part of the sector and search aft (toward the back). To search 
and scan, the lookout shall hold the binoculars steady so the horizon is 
in the top third of the field of vision and direct the eyes just below 
the horizon. The lookout shall scan for approximately five seconds in as 
many small steps as possible across the field seen through the 
binoculars. They shall search the entire sector in approximately five-
degree steps, pausing between steps for approximately five seconds to 
scan the field of view. At the end of the sector search, the glasses 
shall be lowered to allow the eyes to rest for a few seconds, and then 
the lookout shall search back across the sector with the naked eye.
    (F) At night, lookouts shall scan the horizon in a series of 
movements that would allow their eyes to come to periodic rests as they 
scan the sector. When visually searching at night, they shall look a 
little to one side and out of

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the corners of their eyes, paying attention to the things on the outer 
edges of their field of vision. Lookouts shall also have night vision 
devices available for use.
    (ii) Operating Procedures and Collision Avoidance:
    (A) Prior to major exercises, a Letter of Instruction, Mitigation 
Measures Message or Environmental Annex to the Operational Order shall 
be issued to further disseminate the personnel training requirement and 
general marine species mitigation measures.
    (B) Commanding Officers shall make use of marine species detection 
cues and information to limit interaction with marine species to the 
maximum extent possible consistent with safety of the ship.
    (C) While underway, surface vessels shall have at least two lookouts 
with binoculars; surfaced submarines shall have at least one lookout 
with binoculars. Lookouts already posted for safety of navigation and 
man-overboard precautions may be used to fill this requirement. As part 
of their regular duties, lookouts shall watch for and report to the OOD 
the presence of marine mammals.
    (D) Personnel on lookout shall employ visual search procedures 
employing a scanning method in accordance with the Lookout Training 
Handbook (NAVEDTRA 12968-D).
    (E) After sunset and prior to sunrise, lookouts shall employ Night 
Lookouts Techniques in accordance with the Lookout Training Handbook 
(NAVEDTRA 12968-D).
    (F) While in transit, naval vessels shall be alert at all times, use 
extreme caution, and proceed at a ``safe speed'' (the minimum speed at 
which mission goals or safety will not be compromised) so that the 
vessel can take proper and effective action to avoid a collision with 
any marine animal and can be stopped within a distance appropriate to 
the prevailing circumstances and conditions.
    (G) When marine mammals have been sighted in the area, Navy vessels 
shall increase vigilance and implement measures to avoid collisions with 
marine mammals and avoid activities that might result in close 
interaction of naval assets and marine mammals. Such measures shall 
include changing speed and/or course direction and would be dictated by 
environmental and other conditions (e.g., safety or weather).
    (H) Naval vessels shall maneuver to keep at least 500 yds (460 m) 
away from any observed whale and avoid approaching whales head-on. This 
requirement does not apply if a vessel's safety is threatened, such as 
when change of course will create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
their ability to maneuver. Vessels shall take reasonable steps to alert 
other vessels in the vicinity of the whale.
    (I) Where feasible and consistent with mission and safety, vessels 
shall avoid closing to within 200-yd (183 m) of marine mammals other 
than whales (whales addressed above).
    (J) Navy aircraft participating in exercises at sea shall conduct 
and maintain, when operationally feasible and safe, surveillance for 
marine species of concern as long as it does not violate safety 
constraints or interfere with the accomplishment of primary operational 
duties. Marine mammal detections shall be immediately reported to 
assigned Aircraft Control Unit for further dissemination to ships in the 
vicinity of the marine species as appropriate where it is reasonable to 
conclude that the course of the ship will likely result in a closing of 
the distance to the detected marine mammal.
    (K) All vessels shall maintain logs and records documenting training 
operations should they be required for event reconstruction purposes. 
Logs and records shall be kept for a period of 30 days following 
completion of a major training exercise.
    (2) Coordination and Reporting Requirements. (i) The Navy shall 
coordinate with the local NMFS Stranding Coordinator for any unusual 
marine mammal behavior and any stranding, beached live/dead, or floating 
marine mammals that may occur at any time during training activities or 
within 24 hours after completion of training activities.

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    (ii) The Navy shall follow internal chain of command reporting 
procedures as promulgated through Navy instructions and orders.
    (3) Mitigation Measures Applicable to Vessel Transit in the Mid-
Atlantic during North Atlantic Right Whale Migration: The mitigation 
measures apply to all Navy vessel transits, including those vessels that 
would transit to and from East Coast ports and the Cherry Point OPAREA.
    (i) Mid-Atlantic, Offshore of the Eastern United States:
    (A) All Navy vessels are required to use extreme caution and operate 
at a slow, safe speed (at a speed that does not compromise safety of 
navigation) consistent with mission and safety during the months 
indicated below and within a 37 km (20 NM) arc (except as noted) of the 
specified associated reference points:
    (1) South and East of Block Island (37 km (20 NM) seaward of line 
between 41-4.49[deg] N. lat. 071-51.15[deg] W. long. and 41-18.58[deg] 
N. lat. 070-50.23[deg] W. long): Sept-Oct and Mar-Apr.
    (2) New York/New Jersey (40-30.64[deg] N. lat. 073-57.76[deg] W. 
long.): Sep-Oct and Feb-Apr.
    (3) Delaware Bay (Philadelphia) (38-52.13[deg] N. lat. 075-1.93[deg] 
W. long.): Oct-Dec and Feb-Mar.
    (4) Chesapeake Bay (Hampton Roads and Baltimore) (37-1.11[deg] N. 
lat. 075-57.56[deg] W. long.): Nov-Dec and Feb-Apr.
    (5) North Carolina (34-41.54[deg] N. lat. 076-40.20[deg] W. long.): 
Dec-Apr.
    (6) South Carolina (33-11.84[deg] N. lat. 079-8.99[deg] W. long. and 
32-43.39[deg] N. lat. 079-48.72[deg] W. long.): Oct-Apr.
    (B) During the months indicated in paragraph (a)(3)(i)(A) of this 
section, Navy vessels shall practice increased vigilance with respect to 
avoidance of vessel-whale interactions along the mid-Atlantic coast, 
including transits to and from any mid-Atlantic ports not specifically 
identified in paragraph (a)(3)(i)(A) of this section.
    (C) All surface units transiting within 56 km (30 NM) of the coast 
in the mid-Atlantic shall ensure at least two watchstanders are posted, 
including at least one lookout who has completed required MSAT training.
    (D) Navy vessels shall not knowingly approach any whale head on and 
shall maneuver to keep at least 457 m (1,500 ft) away from any observed 
whale, consistent with vessel safety.
    (ii) Southeast Atlantic, Offshore of the Eastern United States--for 
the purposes of the measures below (paragraphs (a)(3)(ii)(A) & (B) of 
this section), the ``southeast'' encompasses sea space from Charleston, 
South Carolina, southward to Sebastian Inlet, Florida, and from the 
coast seaward to 148 km (80 NM) from shore. North Atlantic right whale 
critical habitat is the area from 31-15[deg] N. lat. to 30-15[deg] N. 
lat. extending from the coast out to 28 km (15 NM), and the area from 
28-00[deg] N. lat. to 30-15[deg] N. lat. from the coast out to 9 km (5 
NM). All mitigation measures described here that apply to the critical 
habitat apply from November 15--April 15 and also apply to an associated 
area of concern which extends 9 km (5 NM) seaward of the designated 
critical habitat boundaries.
    (A) Prior to transiting or training in the critical habitat or 
associated area of concern (AAOC), ships shall contact Fleet Area 
Control and Surveillance Facility, Jacksonville, to obtain latest whale 
sighting and other information needed to make informed decisions 
regarding safe speed (the minimum speed at which mission goals or safety 
will not be compromised) and path of intended movement. Subs shall 
contact Commander, Submarine Group Ten for similar information.
    (B) The following specific mitigation measures apply to activities 
occurring within the North Atlantic right whale critical habitat and an 
associated area of concern which extends 9 km (5 NM) seaward of the 
designated critical habitat boundaries:
    (1) When transiting within the critical habitat or associated area 
of concern, vessels shall exercise extreme caution and proceed at a slow 
safe speed. The speed shall be the slowest safe speed that is consistent 
with mission, training and operations.
    (2) Speed reductions (adjustments) are required when a whale is 
sighted by a vessel or when the vessel is within 9 km (5 NM) of a 
reported new sighting less than 12 hours old. Circumstances could arise 
where, in order to avoid

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North Atlantic right whale(s), speed reductions could mean vessels must 
reduce speed to a minimum at which it can safely keep on course or 
vessels could come to an all stop.
    (3) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when a change of course would create an imminent and serious threat to a 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (4) During the North Atlantic right whale calving season, north-
south transits through the critical habitat are prohibited.
    (5) Ships, surfaced subs, and aircraft shall report any whale 
sightings to Fleet Area Control and Surveillance Facility, Jacksonville, 
by the quickest and most practicable means. The sighting report shall 
include the time, latitude/longitude, direction of movement and number 
and description of whale (i.e., adult/calf).
    (6) Naval vessel operations in the North Atlantic right whale 
critical habitat and AAOC during the calving season shall be undertaken 
during daylight and periods of good visibility, to the extent 
practicable and consistent with mission, training, and operation. When 
operating in the critical habitat and AAOC at night or during periods of 
poor visibility, vessels shall operate as if in the vicinity of a 
recently reported NARW sighting.
    (iii) Northeast Atlantic, Offshore of the Eastern United States:
    (A) Prior to transiting the Great South Channel or Cape Cod Bay 
critical habitat areas, ships shall obtain the latest North Atlantic 
right whale sightings and other information needed to make informed 
decisions regarding safe speed (the minimum speed at which mission goals 
or safety will not be compromised). The Great South Channel critical 
habitat is defined by the following coordinates: 41-00[deg] N. lat., 69-
05[deg] W. long.; 41-45[deg] N. lat, 69-45[deg] W. long; 42-10[deg] N. 
lat., 68-31[deg] W. long.; 41-38[deg] N. lat., 68-13[deg] W. long. The 
Cape Cod Bay critical habitat is defined by the following coordinates: 
42-04.8[deg] N. lat., 70-10[deg] W. long.; 42-12[deg] N. lat., 70-
15[deg] W. long.; 42-12[deg] N. lat., 70-30[deg] W. long.; 41-46.8[deg] 
N. lat., 70-30[deg] W. long.
    (B) Ships, surfaced subs, and aircraft shall report any North 
Atlantic right whale sightings (if the whale is identifiable as a right 
whale) off the northeastern U.S. to Patrol and Reconnaissance Wing 
(COMPATRECONWING). The report shall include the time of sighting, lat/
long, direction of movement (if apparent) and number and description of 
the whale(s).
    (C) Vessels or aircraft that observe whale carcasses shall record 
the location and time of the sighting and report this information as 
soon as possible to the cognizant regional environmental coordinator. 
All whale strikes must be reported. This report shall include the date, 
time, and location of the strike; vessel course and speed; operations 
being conducted by the vessel; weather conditions, visibility, and sea 
state; description of the whale; narrative of incident; and indication 
of whether photos/videos of the whale were taken. Navy personnel are 
encouraged to take photos of the whale whenever possible.
    (D) Specific mitigation measures related to activities occurring 
within the critical habitat include the following:
    (1) Vessels shall avoid head-on approaches to North Atlantic right 
whale(s) and shall maneuver to maintain at least 457 m (500 yd) of 
separation from any observed whale if deemed safe to do so. These 
requirements do not apply if a vessel's safety is threatened, such as 
when change of course would create an imminent and serious threat to 
person, vessel, or aircraft, and to the extent vessels are restricted in 
the ability to maneuver.
    (2) When transiting within the critical habitat or associated area 
of concern, vessels shall use extreme caution and operate at a safe 
speed (the minimum speed at which mission goals or safety will not be 
compromised) so as to be able to avoid collisions with North Atlantic 
right whales and other marine mammals, and stop within a distance 
appropriate to the circumstances and conditions.
    (3) Speed reductions (adjustments) are required when a whale is 
sighted by

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a vessel or when the vessel is within 9 km (5 NM) of a reported new 
sighting less than one week old.
    (4) Ships transiting in the Cape Cod Bay and Great South Channel 
critical habitats shall obtain information on recent whale sightings in 
the vicinity of the critical habitat. Any vessel operating in the 
vicinity of a North Atlantic right whale shall consider additional speed 
reductions as per Rule 6 of International Navigational Rules.
    (4) Mitigation Measures for Specific At-sea Training Events--If a 
marine mammal is killed as a result of the proposed Navy training 
activities (e.g., instances in which it is clear that munitions 
explosions caused the death), the Navy shall suspend its activities 
immediately and report the incident to NMFS.
    (i) Firing Exercise (FIREX) Using the Integrated Maritime Portable 
Acoustic Scoring System (IMPASS) (5-in Explosive Rounds)
    (A) This activity shall only occur in Areas 4/5 and 13/14, as 
specified in the Navy's LOA application, in the Cherry Point Range 
Complex.
    (B) Pre-exercise monitoring of the target area shall be conducted 
with ``Big Eyes'' prior to the event, during deployment of the IMPASS 
sonobuoy array, and during return to the firing position. Ships shall 
maintain lookouts dedicated to visually searching for marine mammals 
180[deg] along the ship track line and 360[deg] at each buoy drop-off 
location.
    (C) ``Big Eyes'' on the ship shall be used to monitor a 600-yd (548-
m) buffer zone for marine mammals during naval-gunfire events.
    (D) Ships shall not fire on the target if any marine mammals are 
detected within or approaching the 600-yd (548-m) buffer zone. If marine 
mammals are present, operations must be suspended. Visual observation 
shall occur for approximately 45 min, or until the animal has been 
observed to have cleared the area and is heading away from the buffer 
zone. At such time as animals have cleared the area and are heading away 
from the buffer zone, the Navy may begin or resume operations.
    (E) Post-exercise monitoring of the entire target area shall take 
place with ``Big Eyes'' and the naked eye during the retrieval of the 
IMPASS sonobuoy array following each firing exercise.
    (F) The naval gunfire shall take place during daylight hours only.
    (G) FIREX with IMPASS shall only be used in Beaufort Sea State three 
(3) or less.
    (H) The visibility must be such that the fall of shot is visible 
from the firing ship during the exercise.
    (I) No firing shall occur if marine mammals are detected within 70 
yd (64 m) of the vessel.
    (ii) Air-to-Surface Missile Exercises (Explosive):
    (A) Aircraft shall initially survey the intended ordnance impact 
area for marine mammals.
    (B) During the actual firing of the weapon, the aircraft involved 
must be able to observe the intended ordnance impact area to ensure the 
area is free of marine mammals transiting the range.
    (C) Visual inspection of the target area shall be made by flying at 
1,500 ft (457 m) altitude or lower, if safe to do so, and at slowest 
safe speed.
    (D) Explosive ordnance shall not be targeted to impact within 1,800 
yd (1,646 m) of sighted marine mammals.
    (iii) Mine Neutralization Training Involving Underwater Detonations 
(up to and including 20-lb charges):
    (A) This activity shall only occur in W-15 of the Cherry Point Range 
Complex.
    (B) Observers shall survey the Zone of Influence (ZOI), a 700 yd 
(640 m) radius from detonation location for marine mammals from all 
participating vessels during the entire operation. A survey of the ZOI 
(minimum of 3 parallel tracklines 219 yd [200 m] apart) using support 
craft shall be conducted at the detonation location 30 minutes prior 
through 30 minutes post detonation. Aerial survey support shall be 
utilized whenever operationally feasible.
    (C) Detonation operations shall be conducted during daylight hours 
only.
    (D) If a marine mammal is sighted within the ZOI, the animal shall 
be allowed to leave of its own volition. The Navy shall suspend 
detonation exercises and ensure the area is clear of marine mammals for 
a full 30 minutes prior to detonation.

[[Page 178]]

    (E) Divers placing the charges on mines and dive support vessel 
personnel shall survey the area for marine mammals and shall report any 
sightings to the surface observers. These animals shall be allowed to 
leave of their own volition and the ZOI shall be clear of marine mammals 
for 30 minutes prior to detonation.
    (F) No detonations shall take place within 3.2 nm (6 km) of an 
estuarine inlet.
    (G) No detonations shall take place within 1.6 nm (3 km) of 
shoreline.
    (H) Personnel shall record any protected species observations during 
the exercise as well as measures taken if species are detected within 
the ZOI.



Sec. 218.24  Requirements for monitoring and reporting.

    (a) The Holder of the Letter of Authorization issued pursuant to 
Sec. 216.106 of this chapter and Sec. 218.26 for activities described 
in Sec. 218.20(c) is required to cooperate with the NMFS when 
monitoring the impacts of the activity on marine mammals.
    (b) The Holder of the Authorization must notify NMFS immediately (or 
as soon as clearance procedures allow) if the specified activity 
identified in Sec. 218.20(c) is thought to have resulted in the 
mortality or serious injury of any marine mammals, or in any take of 
marine mammals not identified in Sec. 218.21(c).
    (c) The Navy must conduct all monitoring and required reporting 
under the Letter of Authorization, including abiding by the Cherry Point 
Range Complex Monitoring Plan, which is incorporated herein by 
reference, and which requires the Navy to implement, at a minimum, the 
monitoring activities summarized below.
    (1) Vessel or aerial surveys.
    (i) The Holder of this Authorization shall visually survey a minimum 
of 1 explosive event per year. If possible, the event surveyed shall be 
one involving multiple detonations. One of the vessel or aerial surveys 
should involve professionally trained marine mammal observers (MMOs). If 
it is impossible to conduct the required surveys due to lack of training 
exercises, the missed annual survey requirement shall roll into the 
subsequent year to ensure that the appropriate number of surveys (i.e., 
total of five) occurs over the 5-year period of effectiveness of this 
subject.
    (ii) When operationally feasible, for specified training events, 
aerial or vessel surveys shall be used 1-2 days prior to, during (if 
reasonably safe), and 1-5 days post detonation.
    (iii) Surveys shall include any specified exclusion zone around a 
particular detonation point plus 2,000 yards beyond the border of the 
exclusion zone (i.e., the circumference of the area from the border of 
the exclusion zone extending 2,000 yards outwards). For vessel based 
surveys, a passive acoustic system (hydrophone or towed array) could be 
used to determine if marine mammals are in the area before and/or after 
a detonation event.
    (iv) When conducting a particular survey, the survey team shall 
collect:
    (A) Location of sighting;
    (B) Species (if not possible, indicate whale, dolphin or pinniped);
    (C) Number of individuals;
    (D) Whether calves were observed;
    (E) Initial detection sensor;
    (F) Length of time observers maintained visual contact with marine 
mammal;
    (G) Wave height;
    (H) Visibility;
    (I) Whether sighting was before, during, or after detonations/
exercise, and how many minutes before or after;
    (J) Distance of marine mammal from actual detonations (or target 
spot if not yet detonated);
    (K) Observed behavior--Watchstanders shall report, in plain language 
and without trying to categorize in any way, the observed behavior of 
the animal(s) (such as animal closing to bow ride, paralleling course/
speed, floating on surface and not swimming etc.), including speed and 
direction;
    (L) Resulting mitigation implementation--Indicate whether explosive 
detonations were delayed, ceased, modified, or not modified due to 
marine mammal presence and for how long; and
    (M) If observation occurs while explosives are detonating in the 
water, indicate munitions type in use at time of marine mammal 
detection.

[[Page 179]]

    (2) Passive acoustic monitoring--the Navy shall conduct passive 
acoustic monitoring when operationally feasible.
    (i) Any time a towed hydrophone array is employed during shipboard 
surveys, the towed array shall be deployed during daylight hours for 
each of the days the ship is at sea.
    (ii) The towed hydrophone array shall be used to supplement the 
ship-based systematic line-transect surveys (particularly for species 
such as beaked whales that are rarely seen).
    (iii) The array should have the capability of detecting low 
frequency vocalizations (<1,000 Hz) for baleen whales and relatively 
high frequency (up to 30 kHz) for odontocetes. The use of two 
simultaneously deployed arrays can also allow more accurate localization 
and determination of diving patterns.
    (3) Marine mammal observers on Navy platforms:
    (i) As required in Sec. 218.24(c)(1), MMOs who are selected for 
aerial or vessel surveys shall be placed on a Navy platform during one 
of the explosive exercises being monitored per year, the other 
designated exercise shall be monitored by the Navy lookouts/
watchstanders.
    (ii) The MMO must possess expertise in species identification of 
regional marine mammal species and experience collecting behavioral 
data.
    (iii) MMOs shall not be placed aboard Navy platforms for every Navy 
training event or major exercise, but during specifically identified 
opportunities deemed appropriate for data collection efforts. The events 
selected for MMO participation shall take into account safety, 
logistics, and operational concerns.
    (iv) MMOs shall observe from the same height above water as the 
lookouts.
    (v) The MMOs shall not be part of the Navy's formal reporting chain 
of command during their data collection efforts; Navy lookouts shall 
continue to serve as the primary reporting means within the Navy chain 
of command for marine mammal sightings. The only exception is that if an 
animal is observed within the shutdown zone that has not been observed 
by the lookout, the MMO shall inform the lookout of the sighting and the 
lookout shall take the appropriate action through the chain of command.
    (vi) The MMOs shall collect species identification, behavior, 
direction of travel relative to the Navy platform, and distance first 
observed. Information collected by MMOs should be the same as those 
collected by Navy lookout/watchstanders described in Sec. 
218.24(c)(1)(iv).
    (d) The Navy shall complete an Integrated Comprehensive Monitoring 
Program (ICMP) Plan in 2009. This planning and adaptive management tool 
shall include:
    (1) A method for prioritizing monitoring projects that clearly 
describes the characteristics of a proposal that factor into its 
priority.
    (2) A method for annually reviewing, with NMFS, monitoring results, 
Navy R&D, and current science to use for potential modification of 
mitigation or monitoring methods.
    (3) A detailed description of the Monitoring Workshop to be convened 
in 2011 and how and when Navy/NMFS will subsequently utilize the 
findings of the Monitoring Workshop to potentially modify subsequent 
monitoring and mitigation.
    (4) An adaptive management plan,
    (5) A method for standardizing data collection for Cherry Point 
Range Complex and across range complexes,
    (e) General Notification of Injured or Dead Marine Mammals--Navy 
personnel shall ensure that NMFS (regional stranding coordinator) is 
notified immediately (or as 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 utilizing underwater 
explosive detonations. The Navy 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).
    (f) Annual Cherry Point Range Complex Monitoring Plan Report--The 
Navy shall submit a report annually on March 1 describing the 
implementation and results (through January 1 of the same year) of the 
Cherry Point Range

[[Page 180]]

Complex Monitoring Plan. Data collection methods shall be standardized 
across range complexes to allow for comparison in different geographic 
locations. Although additional information will also be gathered, the 
MMOs collecting marine mammal data pursuant to the Cherry Point Range 
Complex Monitoring Plan shall, at a minimum, provide the same marine 
mammal observation data required in the data required in Sec. 
218.24(g). The Cherry Point Range Complex Monitoring Plan Report may be 
provided to NMFS within a larger report that includes the required 
Monitoring Plan Reports from Cherry Point Range Complex and multiple 
range complexes.
    (g) Annual Cherry Point Range Complex Exercise Report--The Navy 
shall provide the information described below for all of their explosive 
exercises. Until the Navy is able to report in full the information 
below, they shall provide an annual update on the Navy's explosive 
tracking methods, including improvements from the previous year.
    (1) Total annual number of each type of explosive exercise (of those 
identified as part of the ``specified activity'' in this final rule) 
conducted in the Cherry Point Range Complex.
    (2) Total annual expended/detonated rounds (missiles, bombs, etc.) 
for each explosive type.
    (h) Cherry Point Range Complex 5-yr Comprehensive Report--The Navy 
shall submit to NMFS a draft report that analyzes and summarizes all of 
the multi-year marine mammal information gathered during the Cherry 
Point Range Complex exercises for which annual reports are required 
(Annual Cherry Point Range Complex Exercise Reports and Cherry Point 
Range Complex Monitoring Plan Reports). This report shall be submitted 
at the end of the fourth year of the rule (May 2013), covering 
activities that have occurred through December 1, 2012.
    (i) The Navy shall respond to NMFS comments and requests for 
additional information or clarification on the Cherry Point Range 
Complex Comprehensive Report, the Annual Cherry Point Range Complex 
Exercise Report, or the Annual Cherry Point Range Complex Monitoring 
Plan Report (or the multi-Range Complex Annual Monitoring Plan Report, 
if that is how the Navy chooses to submit the information) if submitted 
within 3 months of receipt. These reports will be considered final after 
the Navy has addressed NMFS' comments or provided the requested 
information, or three months after the submittal of the draft if NMFS 
does not comment by then.
    (j) In 2011, the Navy shall convene a Monitoring Workshop in which 
the Monitoring Workshop participants will be asked to review the Navy's 
Monitoring Plans and monitoring results and make individual 
recommendations (to the Navy and NMFS) of ways of improving the 
Monitoring Plans. The recommendations shall be reviewed by the Navy, in 
consultation with NMFS, and modifications to the Monitoring Plan shall 
be made, as appropriate.



Sec. 218.25  Applications for Letters of Authorization.

    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. 218.20(a) (the U.S. Navy) 
must apply for and obtain either an initial Letter of Authorization in 
accordance with Sec. 218.26 or a renewal under Sec. 218.27.



Sec. 218.26  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. 218.27.
    (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

[[Page 181]]

negligible impact on the affected species or stock of marine mammal(s).



Sec. 218.27  Renewal of Letters of Authorization and Adaptive Management.

    (a) A Letter of Authorization issued under Sec. 216.106 and Sec. 
218.26 of this chapter for the activity identified in Sec. 218.20(c) 
will be renewed annually upon:
    (1) Notification to NMFS that the activity described in the 
application submitted under Sec. 218.25 shall 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. 
218.24; and
    (3) A determination by the NMFS that the mitigation, monitoring and 
reporting measures required under Sec. 218.23 and the Letter of 
Authorization issued under Sec. Sec. 216.106 and 218.26 of this 
chapter, were undertaken and will be undertaken during the upcoming 
annual period of validity of a renewed Letter of Authorization.
    (b) If a request for a renewal of a Letter of Authorization issued 
under Sec. Sec. 216.106 and 218.27 of this chapter indicates that a 
substantial modification to the described work, mitigation or monitoring 
undertaken during the upcoming season will occur, the NMFS will provide 
the public a period of 30 days for review and comment on the request. 
Review and comment on renewals of Letters of Authorization are 
restricted to:
    (1) New cited information and data indicating that the 
determinations made in this document are in need of reconsideration, and
    (2) Proposed changes to the mitigation and monitoring requirements 
contained in these regulations or in the current Letter of 
Authorization.
    (c) A notice of issuance or denial of a renewal of a Letter of 
Authorization will be published in the Federal Register.
    (d) NMFS, in response to new information and in consultation with 
the Navy, 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 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 Navy's monitoring from the previous year 
(either from Cherry Point Study Area or other locations).
    (2) Findings of the Monitoring Workshop that the Navy will convene 
in 2011 (Sec. 218.24(j)).
    (3) Compiled results of Navy funded research and development (R&D) 
studies (presented pursuant to the ICMP (Sec. 218.24(d)).
    (4) Results from specific stranding investigations (either from the 
Cherry Point Range Complex Study Area or other locations).
    (5) Results from general marine mammal and sound research (funded by 
the Navy (described below) or otherwise).
    (6) 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. 218.28  Modifications to Letters of Authorization.

    (a) Except as provided in paragraph (b) of this section, no 
substantive modification (including withdrawal or suspension) to the 
Letter of Authorization by NMFS, issued pursuant to Sec. Sec. 216.106 
and 218.26 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. 218.27, 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. 218.20(b), a Letter of 
Authorization issued pursuant to Sec. Sec. 216.106 and 218.26 may be 
substantively modified without prior notification and an opportunity for 
public

[[Page 182]]

comment. Notification will be published in the Federal Register within 
30 days subsequent to the action.

                        PARTS 219-220 [RESERVED]



PART 221_PRESCRIPTIONS IN FERC HYDROPOWER LICENSES--Table of Contents




                      Subpart A_General Provisions

Sec.
221.1 What is the purpose of this part, and to what license proceedings 
          does it apply?
221.2 What terms are used in this part?
221.3 How are time periods computed?
221.4 What deadlines apply to pending applications?

                        Subpart B_Hearing Process

                             Representatives

221.10 Who may represent a party, and what requirements apply to a 
          representative?

                       Document Filing and Service

221.11 What are the form and content requirements for documents under 
          this subpart?
221.12 Where and how must documents be filed?
221.13 What are the requirements for service of documents?

                      Initiation of Hearing Process

221.20 What supporting information must NMFS provide with its 
          preliminary prescriptions?
221.21 How do I request a hearing?
221.22 How do I file a notice of intervention and response?
221.23 When will hearing requests be consolidated?
221.24 How will NMFS respond to any hearing requests?
221.25 What will NMFS do with any hearing requests?
221.26 What regulations apply to a case referred for a hearing?

                 General Provisions Related to Hearings

221.30 What will the Department of Commerce's designated ALJ office do 
          with a case referral?
221.31 What are the powers of the ALJ?
221.32 What happens if the ALJ becomes unavailable?
221.33 Under what circumstances may the ALJ be disqualified?
221.34 What is the law governing ex parte communications?
221.35 What are the requirements for motions?

                  Prehearing Conferences and Discovery

221.40 What are the requirements for prehearing conferences?
221.41 How may parties obtain discovery of information needed for the 
          case?
221.42 When must a party supplement or amend information it has 
          previously provided?
221.43 What are the requirements for written interrogatories?
221.44 What are the requirements for depositions?
221.45 What are the requirements for requests for documents or tangible 
          things or entry on land?
221.46 What sanctions may the ALJ impose for failure to comply with 
          discovery?
221.47 What are the requirements for subpoenas and witness fees?

                     Hearing, Briefing, and Decision

221.50 When and where will the hearing be held?
221.51 What are the parties' rights during the hearing?
221.52 What are the requirements for presenting testimony?
221.53 How may a party use a deposition in the hearing?
221.54 What are the requirements for exhibits, official notice, and 
          stipulations?
221.55 What evidence is admissible at the hearing?
221.56 What are the requirements for transcription of the hearing?
221.57 What is the standard of proof?
221.58 When will the hearing record close?
221.59 What are the requirements for post-hearing briefs?
221.60 What are the requirements for the ALJ's decision?

                     Subpart C_Alternatives Process

221.70 How must documents be filed and served under this subpart?
221.71 How do I propose an alternative?
221.72 What will NMFS do with a proposed alternative?
221.73 How will NMFS analyze a proposed alternative and formulate its 
          modified prescription?
221.74 Has OMB approved the information collection provisions of this 
          subpart?

    Authority: 16 U.S.C. 797(e), 811, 823d.

    Source: 70 FR 69840, Nov. 17, 2005, unless otherwise noted.

[[Page 183]]



                      Subpart A_General Provisions



Sec. 221.1  What is the purpose of this part, and to what license proceedings 

does it apply?

    (a) Hearing process. (1) The regulations in subparts A and B of this 
part contain rules of practice and procedure applicable to hearings on 
disputed issues of material fact with respect to mandatory prescriptions 
that the Department of Commerce, acting through the National Oceanic and 
Atmospheric Administration's National Marine Fisheries Service (NMFS) 
may develop for inclusion in a hydropower license issued by the Federal 
Energy Regulatory Commission (FERC) under subchapter I of the Federal 
Power Act (FPA), 16 U.S.C. 791 et seq. The authority to develop these 
prescriptions is granted by FPA section 18, 16 U.S.C. 811, which 
authorizes the Secretary of Commerce to prescribe fishways.
    (2) The hearing process under this part does not apply to 
recommendations that the Department of Commerce may submit to FERC under 
FPA section 10(a) or (j), 16 U.S.C. 803(a), (j).
    (3) The FPA also grants the Department of Agriculture and Interior 
the authority to develop mandatory conditions, and the Department of the 
Interior the authority to develop mandatory prescriptions, for inclusion 
in a hydropower license. Where the Department of Commerce and either or 
both of these other Departments develop conditions or prescriptions to 
be included in the same hydropower license and where the Departments 
agree to consolidate the hearings under Sec. 221.23:
    (i) A hearing conducted under this part will also address disputed 
issues of material fact with respect to any condition or prescription 
developed by one of the other Departments; or
    (ii) A hearing requested under this part will be conducted by one of 
the other Departments, pursuant to 7 CFR 1.601 et seq. or 43 CFR 45.1 et 
seq., as applicable.
    (4) The regulations in subparts A and B of this part will be 
construed and applied to each hearing process to achieve a just and 
speedy determination, consistent with adequate consideration of the 
issues involved and the provisions of Sec. 221.60(a).
    (b) Alternatives process. The regulations in subparts A and C of 
this part contain rules of procedure applicable to the submission and 
consideration of alternative prescriptions under FPA section 33, 16 
U.S.C. 823d. That section allows any party to the license proceeding to 
propose an alternative to a fishway prescribed by NMFS under section 18.
    (c) Reservation of authority. Where NMFS notifies FERC that it is 
reserving its authority to develop one or more prescriptions during the 
term of the license, the hearing and alternatives processes under this 
part for such prescriptions will be available if and when NMFS exercises 
its reserved authority. NMFS will consult with FERC and notify the 
license parties regarding how to initiate the hearing process and 
alternatives process at that time.
    (d) Applicability. (1) This part applies to any hydropower license 
proceeding for which the license has not been issued as of November 17, 
2005 and for which one or more preliminary prescriptions or 
prescriptions have been or are filed with FERC.
    (2) If NMFS has already filed one or more preliminary prescriptions 
or prescriptions as of November 17, 2005, the special applicability 
provisions of Sec. 221.4 also apply.



Sec. 221.2  What terms are used in this part?

    As used in this part:
    ALJ means an administrative law judge appointed under 5 U.S.C. 3105 
and assigned to preside over the hearing process under subpart B of this 
part.
    Alternative means a prescription that a license party other than 
NMFS or another Department develops as an alternative to a preliminary 
prescription from NMFS or another Department, under FPA sec. 33, 16 
U.S.C. 823d.
    Condition means a condition under FPA sec. 4(e), 16 U.S.C. 797(e), 
for the adequate protection and utilization of a reservation.
    Day means a calendar day.
    Department means the Department of Agriculture, Department of 
Commerce, or Department of the Interior.
    Department of Commerce's designated ALJ office means the ALJ office 
that is

[[Page 184]]

assigned to preside over the hearings process for NMFS.
    Discovery means a prehearing process for obtaining facts or 
information to assist a party in preparing or presenting its case.
    Ex parte communication means an oral or written communication to the 
ALJ that is made without providing all parties reasonable notice and an 
opportunity to participate.
    FERC means the Federal Energy Regulatory Commission.
    FPA means the Federal Power Act, 16 U.S.C. 791 et seq.
    Intervention means a process by which a person who did not request a 
hearing under Sec. 221.21 can participate as a party to the hearing 
under Sec. 221.22.
    License party means a party to the license proceeding, as that term 
is defined at 18 CFR 385.102(c).
    License proceeding means a proceeding before FERC for issuance of a 
license for a hydroelectric facility under 18 CFR parts 4 or 5.
    Material fact means a fact that, if proved, may affect a 
Department's decision whether to affirm, modify, or withdraw any 
condition or prescription.
    NEPA document means an environmental assessment or environmental 
impact statement issued to comply with the requirements of the National 
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq.
    NMFS means the National Marine Fisheries Service, a constituent 
agency of the Department of Commerce, acting by and through the 
Assistant Administrator for Fisheries or one of NMFS's six Regional 
Administrators, as appropriate.
    Office of Habitat Conservation means the NMFS Office of Habitat 
Conservation. Address: Chief, Habitat Protection Division, Office of 
Habitat Conservation, National Marine Fisheries Service, 1315 East-West 
Highway, Silver Spring, MD 20910. Telephone 301-713-4300. Facsimile 
number 301-713-4305.
    Party means, with respect to NMFS's hearing process under subpart B 
of this part:
    (1) A license party that has filed a timely request for a hearing 
under:
    (i) Section 221.21; or
    (ii) Either 7 CFR 1.621 or 43 CFR 45.21, with respect to a hearing 
process consolidated under Sec. 221.23;
    (2) A license party that has filed a timely notice of intervention 
and response under:
    (i) Section 221.22; or
    (ii) Either 7 CFR 1.622 or 43 CFR 45.22, with respect to a hearing 
process consolidated under Sec. 221.23;
    (3) NMFS, if it has filed a preliminary prescription; and
    (4) Any other Department that has filed a preliminary condition or 
prescription, with respect to a hearing process consolidated under Sec. 
221.23.
    Person means an individual; a partnership, corporation, association, 
or other legal entity; an unincorporated organization; and any federal, 
state, tribal, county, district, territorial, or local government or 
agency.
    Preliminary condition or prescription means a preliminary condition 
or prescription filed by a Department with FERC under 18 CFR 4.34(b), 
4.34(i), or 5.22(a) for potential inclusion in a hydropower license.
    Prescription means a fishway prescribed under FPA sec. 18, 16 U.S.C. 
811, to provide for the safe, timely, and effective passage of fish.
    Representative means a person who:
    (1) Is authorized by a party to represent the party in a hearing 
process under this subpart; and
    (2) Has filed an appearance under Sec. 221.10.
    Secretary means the Secretary of Commerce or his or her designee.
    Senior Department employee has the same meaning as the term ``senior 
employee'' in 5 CFR 2637.211(a).
    You refers to a party other than a Department.



Sec. 221.3  How are time periods computed?

    (a) General. Time periods are computed as follows:
    (1) The day of the act or event from which the period begins to run 
is not included.
    (2) The last day of the period is included.
    (i) If that day is a Saturday, Sunday, or federal holiday, the 
period is extended to the next business day.

[[Page 185]]

    (ii) The last day of the period ends at 5 p.m. at the place where 
the filing or other action is due.
    (3) If the period is less than 7 days, any Saturday, Sunday, or 
federal holiday that falls within the period is not included.
    (b) Extensions of time. (1) No extension of time can be granted to 
file a request for a hearing under Sec. 221.21, a notice of 
intervention and response under Sec. 221.22, an answer under Sec. 
221.24, or any document under subpart C of this part.
    (2) An extension of time to file any other document under subpart B 
of this part may be granted only upon a showing of good cause.
    (i) To request an extension of time, a party must file a motion 
under Sec. 221.35 stating how much additional time is needed and the 
reasons for the request.
    (ii) The party must file the motion before the applicable time 
period expires, unless the party demonstrates extraordinary 
circumstances that justify a delay in filing.
    (iii) The ALJ may grant the extension only if:
    (A) It would not unduly prejudice other parties; and
    (B) It would not delay the decision under Sec. 221.60.



Sec. 221.4  What deadlines apply to pending applications?

    (a) Applicability. (1) This section applies to any case in which 
NMFS has filed a preliminary prescription or prescription with FERC 
before November 17, 2005 and FERC has not issued a license as of that 
date.
    (2) The deadlines in this section will apply in such a case, in lieu 
of any inconsistent deadline in other sections of this part.
    (b) Hearing process. (1) Any request for a hearing under Sec. 
221.21 must be filed with the Office of Habitat Conservation by December 
19, 2005.
    (2) Any notice of intervention and response under Sec. 221.22 must 
be filed by January 3, 2006.
    (3) Upon receipt of a hearing request under paragraph (b)(1) of this 
section, NMFS must do the following by March 17, 2006:
    (i) Comply with the requirements of Sec. 221.23;
    (ii) Determine jointly with any other Department that has received a 
hearing request, after consultation with FERC, a time frame for the 
hearing process and a corresponding deadline for NMFS to file an answer 
under Sec. 221.24; and
    (iii) Issue a notice to each party specifying the time frame for the 
hearing process, including the deadline for NMFS to file an answer.
    (c) Alternatives process. (1) Any alternative under Sec. 221.71 
must be filed with the Office of Habitat Conservation by December 19, 
2005.
    (2) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if no hearing request is filed under paragraph (b)(1) of this 
section, NMFS must do the following by February 15, 2006:
    (i) Determine jointly with any other Department that has received a 
related alternative, after consultation with FERC, a time frame for the 
filing of a modified prescription under Sec. 221.72(b); and
    (ii) Issue a notice to the license party that has submitted the 
alternative, specifying the time frame for the filing of a modified 
prescription.
    (3) Upon receipt of an alternative under paragraph (c)(1) of this 
section, if a hearing request is also filed under paragraph (b)(1) of 
this section, NMFS will follow the provisions of paragraph (b)(3) of 
this section.



                        Subpart B_Hearing Process

                             Representatives



Sec. 221.10  Who may represent a party, and what requirements apply to a 

representative?

    (a) Individuals. A party who is an individual may either represent 
himself or herself in the hearing process under this subpart or 
authorize an attorney to represent him or her.
    (b) Organizations. A party that is an organization or other entity 
may authorize one of the following to represent it:
    (1) An attorney;
    (2) A partner, if the entity is a partnership;
    (3) An officer or full-time employee, if the entity is a 
corporation, association, or unincorporated organization;

[[Page 186]]

    (4) A receiver, administrator, executor, or similar fiduciary, if 
the entity is a receivership, trust, or estate; or
    (5) An elected or appointed official or an employee, if the entity 
is a federal, state, tribal, county, district, territorial, or local 
government or component.
    (c) Appearance. A representative must file a notice of appearance. 
The notice must:
    (1) Meet the form and content requirements for documents under Sec. 
221.11;
    (2) Include the name and address of the person on whose behalf the 
appearance is made;
    (3) If the representative is an attorney, include a statement that 
he or she is a member in good standing of the bar of the highest court 
of a state, the District of Columbia, or any territory or commonwealth 
of the United States (identifying which one); and
    (4) If the representative is not an attorney, include a statement 
explaining his or her authority to represent the entity.
    (d) Disqualification. The ALJ may disqualify any representative for 
misconduct or other good cause.

                       Document Filing and Service



Sec. 221.11  What are the form and content requirements for documents under 

this subpart?

    (a) Form. Each document filed in a case under this subpart must:
    (1) Measure 8\1/2\ by 11 inches, except that a table, chart, 
diagram, or other attachment may be larger if folded to 8\1/2\ by 11 
inches and attached to the document;
    (2) Be printed on just one side of the page;
    (3) Be clearly typewritten, printed, or otherwise reproduced by a 
process that yields legible and permanent copies;
    (4) Use 10 point font size or larger;
    (5) Be double-spaced except for footnotes and long quotations, which 
may be single-spaced;
    (6) Have margins of at least 1 inch; and
    (7) Be bound on the left side, if bound.
    (b) Caption. Each document filed under this subpart must begin with 
a caption that sets forth:
    (1) The name of the case under this subpart and the docket number, 
if one has been assigned;
    (2) The name and docket number of the license proceeding to which 
the case under this subpart relates; and
    (3) A descriptive title for the document, indicating the party for 
whom it is filed and the nature of the document.
    (c) Signature. The original of each document filed under this 
subpart must be signed by the representative of the person for whom the 
document is filed. The signature constitutes a certification by the 
representative that he or she has read the document; that to the best of 
his or her knowledge, information, and belief, the statements made in 
the document are true; and that the document is not being filed for the 
purpose of causing delay.
    (d) Contact information. Below the representative's signature, the 
document must provide the representative's name, mailing address, street 
address (if different), telephone number, facsimile number (if any), and 
electronic mail address (if any).



Sec. 221.12  Where and how must documents be filed?

    (a) Place of filing. Any documents relating to a case under this 
subpart must be filed with the appropriate office, as follows:
    (1) Before NMFS refers a case for docketing under Sec. 221.25, any 
documents must be filed with the Office of Habitat Conservation. The 
Office of Habitat Conservation's address, telephone number, and 
facsimile number are set forth in Sec. 221.2.
    (2) NMFS will notify the parties of the date on which it refers a 
case for docketing under Sec. 221.25. After that date, any documents 
must be filed with:
    (i) The Department of Commerce's designated ALJ office. The name, 
address, telephone number, and facsimile number of the Department of 
Commerce's designated ALJ office will be provided in the referral notice 
from NMFS; or
    (ii) The hearings component of or used by another Department, if 
that Department will be conducting the hearing under Sec. 221.25. The 
name, address, telephone number, and facsimile

[[Page 187]]

number of the appropriate hearings component will be provided in the 
referral notice from NMFS.
    (b) Method of filing. (1) A document must be filed with the 
appropriate office under paragraph (a) of this section using one of the 
following methods:
    (i) By hand delivery of the original document;
    (ii) By sending the original document by express mail or courier 
service for delivery on the next business day; or
    (iii) By sending the document by facsimile if:
    (A) The document is 20 pages or less, including all attachments;
    (B) The sending facsimile machine confirms that the transmission was 
successful; and
    (C) The original of the document is sent by regular mail on the same 
day.
    (2) Parties are encouraged, but not required to supplement any 
original document by providing the appropriate office with an electronic 
copy of the document on compact disc.
    (c) Date of filing. A document under this subpart is considered 
filed on the date it is received. However, any document received after 5 
p.m. at the place where the filing is due is considered filed on the 
next regular business day.
    (d) Nonconforming documents. If any document submitted for filing 
under this subpart does not comply with the requirements of this subpart 
or any applicable order, it may be rejected. If the defect is minor, the 
party may be notified of the defect and given a chance to correct it.



Sec. 221.13  What are the requirements for service of documents?

    (a) Filed documents. Any document related to a case under this 
subpart must be served at the same time the document is delivered or 
sent for filing. Copies must be served as follows:
    (1) A complete copy of any request for a hearing under Sec. 221.21 
must be served on FERC and each license party, using one of the methods 
of service in paragraph (c) of this section.
    (2) A complete copy of any notice of intervention and response under 
Sec. 221.22 must be:
    (i) Served on FERC, the license applicant, any person who has filed 
a request for hearing under Sec. 221.21, and NMFS, using one of the 
methods of service in paragraph (c) of this section; and
    (ii) Sent to any other license party using regular mail.
    (3) A complete copy of any other filed document must be served on 
each party, using one of the methods of service in paragraph (c) of this 
section.
    (b) Documents issued by the ALJ. A complete copy of any notice, 
order, decision, or other document issued by the ALJ under this subpart 
must be served on each party, using one of the methods of service in 
paragraph (c) of this section.
    (c) Method of service. Service must be accomplished by one of the 
following methods:
    (1) By hand delivery of the document;
    (2) By sending the document by express mail or courier service for 
delivery on the next business day;
    (3) By sending the document by facsimile if:
    (i) The document is 20 pages or less, including all attachments;
    (ii) The sending facsimile machine confirms that the transmission 
was successful; and
    (iii) The document is sent by regular mail on the same day; or
    (4) By sending the document, including all attachments, by 
electronic mail if:
    (i) A copy of the document is sent by regular mail on the same day; 
and
    (ii) The party acknowledges receipt of the document by close of the 
next business day.
    (d) Acknowledgment of service. Any party who receives a document 
under this subpart by electronic mail must promptly send a reply 
electronic mail message acknowledging receipt.
    (e) Certificate of service. A certificate of service must be 
attached to each document filed under this subpart. The certificate must 
be signed by the party's representative and include the following 
information:
    (1) The name, address, and other contact information of each party's 
representative on whom the document was served;
    (2) The means of service, including information indicating 
compliance with paragraph (c)(3) or (c)(4) of this section, if 
applicable; and

[[Page 188]]

    (3) The date of service.

                      Initiation of Hearing Process



Sec. 221.20  What supporting information must NMFS provide with its 

preliminary prescriptions?

    (a) Supporting information. (1) When NMFS files a preliminary 
prescription with FERC, it must include a rationale for the prescription 
and an index to NMFS's administrative record that identifies all 
documents relied upon.
    (2) If any of the documents relied upon are not already in the 
license proceeding record, NMFS must:
    (i) File them with FERC at the time it files the preliminary 
prescription; and
    (ii) Provide copies to the license applicant.
    (b) Service. NMFS will serve a copy of its preliminary prescription 
on each license party.



Sec. 221.21  How do I request a hearing?

    (a) General. To request a hearing on disputed issues of material 
fact with respect to any prescription filed by NMFS, you must:
    (1) Be a license party; and
    (2) File with the Office of Habitat Conservation a written request 
for a hearing within 30 days after the deadline for the Departments to 
file preliminary prescriptions with FERC.
    (b) Content. Your hearing request must contain:
    (1) A numbered list of the factual issues that you allege are in 
dispute, each stated in a single, concise sentence; and
    (2) The following information with respect to each issue:
    (i) The specific factual statements made or relied upon by [the 
bureau] under Sec. 221.20(a) that you dispute;
    (ii) The basis for your opinion that those factual statements are 
unfounded or erroneous;
    (iii) The basis for your opinion that any factual dispute is 
material; and
    (iv) With respect to any scientific studies, literature, and other 
documented information supporting your opinions under paragraphs 
(b)(2)(ii) and (b)(2)(iii) of this section, specific citations to the 
information relied upon. If any such document is not already in the 
license proceeding record, you must provide a copy with the request.
    (c) Witnesses and exhibits. Your hearing request must also list the 
witnesses and exhibits that you intend to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(2) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 221.22  How do I file a notice of intervention and response?

    (a) General. (1) To intervene as a party to the hearing process, you 
must:
    (i) Be a license party; and
    (ii) File with the Office of Habitat Conservation a notice of 
intervention and a written response to any request for a hearing within 
15 days after the date of service of the request for a hearing.
    (2) A license party filing a notice of intervention and response may 
not raise issues of material fact beyond those raised in the hearing 
request.
    (b) Content. In your notice of intervention and response you must 
explain your position with respect to the issues of material fact raised 
in the hearing request under Sec. 221.21(b).
    (1) If you agree with the information provided by NMFS under Sec. 
221.20(a) or by the requester under Sec. 221.21(b), your response may 
refer to NMFS's explanation or the requester's hearing request for 
support.
    (2) If you wish to rely on additional information or analysis, your 
response must provide the same level of detail with respect to the 
additional information or analysis as required under Sec. 221.21(b).
    (c) Witnesses and exhibits. Your response and notice must also list 
the witnesses and exhibits that you intend

[[Page 189]]

to present at the hearing, other than solely for impeachment purposes.
    (1) For each witness listed, you must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony; and
    (2) For each exhibit listed, you must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b) of this section may not exceed 
two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.



Sec. 221.23  When will hearing requests be consolidated?

    (a) Initial Department coordination. If NMFS has received a copy of 
a hearing request, it must contact the other Departments within 10 days 
after the deadline for filing hearing requests under Sec. 221.21 and 
determine:
    (1) Whether any of the other Departments has also filed a 
preliminary condition or prescription relating to the license with FERC; 
and
    (2) If so, whether the other Departments have also received a 
hearing request with respect to the preliminary condition or 
prescription.
    (b) Decision on consolidation. Within 25 days after the deadline for 
filing hearing requests under Sec. 221.21, if NMFS has received a 
hearing request, NMFS must:
    (1) Consult with any other Department that has also received a 
hearing request; and
    (2) Decide jointly with the other Department:
    (i) Whether to consolidate the cases for hearing under paragraphs 
(c)(3)(ii) through (c)(3)(iv) of this section; and
    (ii) If so, which Department will conduct the hearing on their 
behalf.
    (c) Criteria. Cases will or may be consolidated as follows:
    (1) All hearing requests with respect to any prescriptions from NMFS 
will be consolidated for hearing.
    (2) Any or all of the following may be consolidated for hearing if 
NMFS determines that there are common issues of material fact or that 
consolidation is otherwise appropriate:
    (i) Two or more hearing requests with respect to prescriptions from 
NMFS and the Department of the Interior; or
    (ii) Two or more hearing requests with respect to any condition from 
another Department and any prescription from NMFS.



Sec. 221.24  How will NMFS respond to any hearing requests?

    (a) General. NMFS will determine whether to file an answer to any 
hearing request under Sec. 221.21.
    (b) Content. If NMFS files an answer:
    (1) For each of the numbered factual issues listed under Sec. 
221.21(b)(1), the answer must explain NMFS's position with respect to 
the issues of material fact raised by the requester, including one or 
more of the following statements as appropriate:
    (i) That NMFS is willing to stipulate to the facts as alleged by the 
requester;
    (ii) That NMFS believes the issue listed by the requester is not a 
factual issue, explaining the basis for such belief;
    (iii) That NMFS believes the issue listed by the requester is not 
material, explaining the basis for such belief; or
    (iv) That NMFS agrees that the issue is factual, material, and in 
dispute.
    (2) The answer must also indicate whether the hearing request will 
be consolidated with one or more other hearing requests under Sec. 
221.23 and, if so:
    (i) Identify any other hearing request that will be consolidated 
with this hearing request; and
    (ii) State which Department will conduct the hearing and provide 
contact information for the appropriate Department hearings component.
    (c) Witnesses and exhibits. NMFS's answer must also list the 
witnesses and exhibits that it intends to present at the hearing, other 
than solely for impeachment purposes.
    (1) For each witness listed, NMFS must provide:
    (i) His or her name, address, telephone number, and qualifications; 
and
    (ii) A brief narrative summary of his or her expected testimony.

[[Page 190]]

    (2) For each exhibit listed, NMFS must specify whether it is in the 
license proceeding record.
    (d) Page limits. (1) For each disputed factual issue, the 
information provided under paragraph (b)(1) of this section may not 
exceed two pages.
    (2) For each witness, the information provided under paragraph 
(c)(1) of this section may not exceed one page.
    (e) Notice in lieu of answer. If NMFS elects not to file an answer 
to a hearing request:
    (1) NMFS is deemed to agree that the issues listed by the requester 
are factual, material, and in dispute;
    (2) NMFS may file a list of witnesses and exhibits with respect to 
the request only as provided in Sec. 221.42(b); and
    (3) NMFS must file a notice containing the information required by 
paragraph (b)(2) of this section, if the hearing request will be 
consolidated with one or more other hearing requests under Sec. 221.23.



Sec. 221.25  What will NMFS do with any hearing requests?

    (a) Case referral. Within 50 days after the deadline in Sec. 
221.21(a), NMFS will refer the case for a hearing as follows:
    (1) If the hearing is to be conducted by NMFS, NMFS will refer the 
case to the Department of Commerce's designated ALJ office.
    (2) If the hearing is to be conducted by another Department, NMFS 
will refer the case to the hearings component used by that Department.
    (b) Content. The case referral will consist of the following:
    (1) A copy of any preliminary prescription under Sec. 221.20;
    (2) The original of any hearing request under Sec. 221.21;
    (3) The original of any notice of intervention and response under 
Sec. 221.22;
    (4) The original of any answer under Sec. 221.24; and
    (5) An original referral notice under paragraph (c) of this section.
    (c) Notice. At the time NMFS refers the case for a hearing, it must 
provide a referral notice that contains the following information:
    (1) The name, address, telephone number, and facsimile number of the 
Department hearings component that will conduct the hearing;
    (2) The name, address, and other contact information for the 
representative of each party to the hearing process;
    (3) An identification of any other hearing request that will be 
consolidated with this hearing request; and
    (4) The date on which NMFS is referring the case for docketing.
    (d) Delivery and service. (1) NMFS must refer the case to the 
appropriate Department hearings component by one of the methods 
identified in Sec. 221.12(b)(1)(i) through (b)(1)(ii).
    (2) NMFS must serve a copy of the referral notice on FERC and each 
party to the hearing by one of the methods identified in Sec. 
221.13(c)(1) and (c)(2).



Sec. 221.26  What regulations apply to a case referred for a hearing?

    (a) If NMFS refers the case to the Department of Commerce's 
designated ALJ office, the regulations in this subpart will continue to 
apply to the hearing process.
    (b) If NMFS refers the case to the United States Department of 
Agriculture's Office of Administrative Law Judges, the regulations at 7 
CFR 1.601 et seq. will apply from that point on.
    (c) If NMFS refers the case to the Department of the Interior's 
Office of Hearings and Appeals, the regulations at 43 CFR 45.1 et seq. 
will apply from that point on.

                 General Provisions Related to Hearings



Sec. 221.30  What will the Department of Commerce's designated ALJ office do 

with a case referral?

    Within 5 days after issuance of the referral notice under Sec. 
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c):
    (a) The Department of Commerce's designated ALJ office must:
    (1) Docket the case;
    (2) Assign an ALJ to preside over the hearing process and issue a 
decision; and
    (3) Issue a docketing notice that informs the parties of the docket 
number and the ALJ assigned to the case; and
    (b) The ALJ must issue a notice setting the time, place, and method 
for conducting an initial prehearing conference under Sec. 221.40. This 
notice may

[[Page 191]]

be combined with the docketing notice under paragraph (a)(3) of this 
section.



Sec. 221.31  What are the powers of the ALJ?

    The ALJ will have all powers necessary to conduct a fair, orderly, 
expeditious, and impartial hearing process, consistent with the 
requirements of Sec. 221.60(a), including the powers to:
    (a) Administer oaths and affirmations;
    (b) Issue subpoenas to the extent authorized by law;
    (c) Rule on motions;
    (d) Authorize discovery as provided for in this subpart;
    (e) Hold hearings and conferences;
    (f) Regulate the course of hearings;
    (g) Call and question witnesses;
    (h) Exclude any person from a hearing or conference for misconduct 
or other good cause;
    (i) Issue a decision consistent with Sec. 221.60(b) regarding any 
disputed issues of material fact relating to any Department's condition 
or prescription that has been referred to the ALJ for hearing; and
    (j) Take any other action authorized by law.



Sec. 221.32  What happens if the ALJ becomes unavailable?

    (a) If the ALJ becomes unavailable or otherwise unable to perform 
the duties described in Sec. 221.31, the Department of Commerce's 
designated ALJ office shall designate a successor.
    (b) If a hearing has commenced and the ALJ cannot proceed with it, a 
successor ALJ may do so. At the request of a party, the successor ALJ 
may recall any witness whose testimony is material and disputed, and who 
is available to testify again without undue burden. The successor ALJ 
may, within his or her discretion, recall any other witness.



Sec. 221.33  Under what circumstances may the ALJ be disqualified?

    (a) The ALJ may withdraw from a case at any time the ALJ deems 
himself or herself disqualified.
    (b) At any time before issuance of the ALJ's decision, any party may 
move that the ALJ disqualify himself or herself for personal bias or 
other valid cause.
    (1) The party must file the motion promptly after discovering facts 
or other reasons allegedly constituting cause for disqualification.
    (2) The party must file with the motion an affidavit or declaration 
setting forth the facts or other reasons in detail.
    (c) The ALJ must rule upon the motion, stating the grounds for the 
ruling.
    (1) If the ALJ concludes that the motion is timely and meritorious, 
he or she must disqualify himself or herself and withdraw from the case.
    (2) If the ALJ does not disqualify himself or herself and withdraw 
from the case, the ALJ must continue with the hearing process and issue 
a decision.



Sec. 221.34  What is the law governing ex parte communications?

    (a) Ex parte communications with the ALJ or his or her staff are 
prohibited in accordance with 5 U.S.C. 554(d).
    (b) This section does not prohibit ex parte inquiries concerning 
case status or procedural requirements, unless the inquiry involves an 
area of controversy in the hearing process.



Sec. 221.35  What are the requirements for motions?

    (a) General. Any party may apply for an order or ruling on any 
matter related to the hearing process by presenting a motion to the ALJ. 
A motion may be presented any time after the Department of Commerce's 
designated ALJ office issues a docketing notice under Sec. 221.30.
    (1) A motion made at a hearing may be stated orally on the record, 
unless the ALJ directs that it be reduced to writing.
    (2) Any other motion must:
    (i) Be in writing;
    (ii) Comply with the requirements of this subpart with respect to 
form, content, filing, and service; and
    (iii) Not exceed 10 pages.
    (b) Content. (1) Each motion must state clearly and concisely:
    (i) Its purpose and the relief sought;
    (ii) The facts constituting the grounds for the relief sought; and

[[Page 192]]

    (iii) Any applicable statutory or regulatory authority.
    (2) A proposed order must accompany the motion.
    (c) Response. Except as otherwise required by this part or by order 
of the ALJ, any other party may file a response to a written motion 
within 10 days after service of the motion. When a party presents a 
motion at a hearing, any other party may present a response orally on 
the record.
    (d) Reply. Unless the ALJ orders otherwise, no reply to a response 
may be filed.
    (e) Effect of filing. Unless the ALJ orders otherwise, the filing of 
a motion does not stay the hearing process.
    (f) Ruling. The ALJ will rule on the motion as soon as practicable, 
either orally on the record or in writing. He or she may summarily deny 
any dilatory, repetitive, or frivolous motion.

                  Prehearing Conferences and Discovery



Sec. 221.40  What are the requirements for prehearing conferences?

    (a) Initial prehearing conference. The ALJ will conduct an initial 
prehearing conference with the parties at the time specified in the 
docketing notice under Sec. 221.30, on or about the 20th day after 
issuance of the referral notice under Sec. 221.25(c).
    (1) The initial prehearing conference will be used:
    (i) To identify, narrow, and clarify the disputed issues of material 
fact and exclude issues that do not qualify for review as factual, 
material, and disputed;
    (ii) To consider the parties' motions for discovery under Sec. 
221.41 and to set a deadline for the completion of discovery;
    (iii) To discuss the evidence on which each party intends to rely at 
the hearing;
    (iv) To set the deadline for submission of written testimony under 
Sec. 221.52; and
    (v) To set the date, time, and place of the hearing.
    (2) The initial prehearing conference may also be used:
    (i) To discuss limiting and grouping witnesses to avoid duplication;
    (ii) To discuss stipulations of fact and of the content and 
authenticity of documents;
    (iii) To consider requests that the ALJ take official notice of 
public records or other matters;
    (iv) To discuss the submission of written testimony, briefs, or 
other documents in electronic form; and
    (v) To consider any other matters that may aid in the disposition of 
the case.
    (b) Other conferences. The ALJ may in his or her discretion direct 
the parties to attend one or more other prehearing conferences, if 
consistent with the need to complete the hearing process within 90 days. 
Any party may by motion request a conference.
    (c) Notice. The ALJ must give the parties reasonable notice of the 
time and place of any conference. A conference will ordinarily be held 
by telephone, unless the ALJ orders otherwise.
    (d) Preparation. (1) Each party's representative must be fully 
prepared for a discussion of all issues properly before the conference, 
both procedural and substantive. The representative must be authorized 
to commit the party that he or she represents respecting those issues.
    (2) Before the date set for the initial prehearing conference, the 
parties' representatives must make a good faith effort:
    (i) To meet in person, by telephone, or by other appropriate means; 
and
    (ii) To reach agreement on discovery and the schedule of remaining 
steps in the hearing process.
    (e) Failure to attend. Unless the ALJ orders otherwise, a party that 
fails to attend or participate in a conference, after being served with 
reasonable notice of its time and place, waives all objections to any 
agreements reached in the conference and to any consequent orders or 
rulings.
    (f) Scope. During a conference, the ALJ may dispose of any 
procedural matters related to the case.
    (g) Order. Within 2 days after the conclusion of each conference, 
the ALJ must issue an order that recites any agreements reached at the 
conference and any rulings made by the ALJ during or as a result of the 
conference.

[[Page 193]]



Sec. 221.41  How may parties obtain discovery of information needed for the 

case?

    (a) General. By agreement of the parties or with the permission of 
the ALJ, a party may obtain discovery of information to assist the party 
in preparing or presenting its case. Available methods of discovery are:
    (1) Written interrogatories;
    (2) Depositions as provided in paragraph (h) of this section; and
    (3) Requests for production of designated documents or tangible 
things or for entry on designated land for inspection or other purposes.
    (b) Criteria. Discovery may occur only as agreed to by the parties 
or as authorized by the ALJ in a written order or during a prehearing 
conference. The ALJ may authorize discovery only if the party requesting 
discovery demonstrates:
    (1) That the discovery will not unreasonably delay the hearing 
process;
    (2) That the information sought:
    (i) Will be admissible at the hearing or appears reasonably 
calculated to lead to the discovery of admissible evidence;
    (ii) Is not already in the license proceeding record or otherwise 
obtainable by the party;
    (iii) Is not cumulative or repetitious; and
    (iv) Is not privileged or protected from disclosure by applicable 
law;
    (3) That the scope of the discovery is not unduly burdensome;
    (4) That the method to be used is the least burdensome method 
available;
    (5) That any trade secrets or proprietary information can be 
adequately safeguarded; and
    (6) That the standards for discovery under paragraphs (f) through 
(h) of this section have been met, if applicable.
    (c) Motions. A party may initiate discovery:
    (1) Pursuant to an agreement of the parties; or
    (2) By filing a motion that:
    (i) Briefly describes the proposed method(s), purpose, and scope of 
the discovery;
    (ii) Explains how the discovery meets the criteria in paragraphs 
(b)(1) through (b)(6) of this section; and
    (iii) Attaches a copy of any proposed discovery request (written 
interrogatories, notice of deposition, or request for production of 
designated documents or tangible things or for entry on designated 
land).
    (d) Timing of motions. A party must file any discovery motion under 
paragraph (c)(2) of this section within 7 days after issuance of the 
referral notice under Sec. 221.25(c).
    (e) Objections. (1) A party must file any objections to a discovery 
motion or to specific portions of a proposed discovery request within 7 
days after service of the motion.
    (2) An objection must explain how, in the objecting party's view, 
the discovery sought does not meet the criteria in paragraphs (b)(1) 
through (b)(6) of this section.
    (f) Materials prepared for hearing. A party generally may not obtain 
discovery of documents and tangible things otherwise discoverable under 
paragraph (b) of this section if they were prepared in anticipation of 
or for the hearing by or for another party's representative (including 
the party's attorney, expert, or consultant).
    (1) If a party wants to discover such materials, it must show:
    (i) That it has substantial need of the materials in preparing its 
own case; and
    (ii) That the party is unable without undue hardship to obtain the 
substantial equivalent of the materials by other means.
    (2) In ordering discovery of such materials when the required 
showing has been made, the ALJ must protect against disclosure of the 
mental impressions, conclusions, opinions, or legal theories of an 
attorney.
    (g) Experts. Unless restricted by the ALJ, a party may discover any 
facts known or opinions held by an expert concerning any relevant 
matters that are not privileged. Such discovery will be permitted only 
if:
    (1) The expert is expected to be a witness at the hearing; or
    (2) The expert is relied on by another expert who is expected to be 
a witness at the hearing, and the party shows:
    (i) That it has a compelling need for the information; and

[[Page 194]]

    (ii) That it cannot practicably obtain the information by other 
means.
    (h) Limitations on depositions. (1) A party may depose a witness 
only if the party shows that the witness:
    (i) Will be unable to attend the hearing because of age, illness, or 
other incapacity; or
    (ii) Is unwilling to attend the hearing voluntarily, and the party 
is unable to compel the witness's attendance at the hearing by subpoena.
    (2) Paragraph (h)(1)(ii) of this section does not apply to any 
person employed by or under contract with the party seeking the 
deposition.
    (3) A party may depose a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the deposition would not significantly interfere with the 
employee's ability to perform his or her government duties.
    (i) Completion of discovery. All discovery must be completed within 
25 days after the initial prehearing conference, unless the ALJ sets a 
different deadline.



Sec. 221.42  When must a party supplement or amend information it has 

previously provided?

    (a) Discovery. A party must promptly supplement or amend any prior 
response to a discovery request if it learns that the response:
    (1) Was incomplete or incorrect when made; or
    (2) Though complete and correct when made, is now incomplete or 
incorrect in any material respect.
    (b) Witnesses and exhibits. (1) Within 5 days after the date set for 
completion of discovery, each party must file an updated version of the 
list of witnesses and exhibits required under Sec. Sec. 221.21(c), 
221.22(c), or 221.24(c).
    (2) If a party wishes to include any new witness or exhibit on its 
updated list, it must provide an explanation of why it was not feasible 
for the party to include the witness or exhibit on its list under 
Sec. Sec. 221.21(c), 221.22(c), or 221.24(c).
    (c) Failure to disclose. (1) A party that fails to disclose 
information required under Sec. Sec. 221.21(c), 221.22(c), or 
221.24(c), or paragraphs (a) or (b) of this section, will not be 
permitted to introduce as evidence at the hearing testimony from a 
witness or other information that it failed to disclose.
    (2) Paragraph (c)(1) of this section does not apply if the failure 
to disclose was substantially justified or is harmless.
    (3) Before or during the hearing, a party may object to the 
admission of evidence under paragraph (c)(1) of this section.
    (4) The ALJ will consider the following in determining whether to 
exclude evidence under paragraphs (c)(1) through (c)(3) of this section:
    (i) The prejudice to the objecting party;
    (ii) The ability of the objecting party to cure any prejudice;
    (iii) The extent to which presentation of the evidence would disrupt 
the orderly and efficient hearing of the case;
    (iv) The importance of the evidence; and
    (v) The reason for the failure to disclose, including any bad faith 
or willfulness regarding the failure.



Sec. 221.43  What are the requirements for written interrogatories?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
propound interrogatories must file a motion under Sec. 221.41(c).
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 221.41(b) with 
respect to any discovery motion requesting the use of written 
interrogatories. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed interrogatories; or
    (2) Deny the motion.
    (c) Answers to interrogatories. Except upon agreement of the 
parties, the party to whom the proposed interrogatories are directed 
must file its answers to any interrogatories approved by the ALJ within 
15 days after issuance of the order under paragraph (b) of this section.

[[Page 195]]

    (1) Each approved interrogatory must be answered separately and 
fully in writing.
    (2) The party or its representative must sign the answers to 
interrogatories under oath or affirmation.
    (d) Access to records. A party's answer to an interrogatory is 
sufficient when:
    (1) The information may be obtained from an examination of records, 
or from a compilation, abstract, or summary based on such records;
    (2) The burden of obtaining the information from the records is 
substantially the same for all parties;
    (3) The answering party specifically identifies the individual 
records from which the requesting party may obtain the information and 
where the records are located; and
    (4) The answering party provides the requesting party with 
reasonable opportunity to examine the records and make a copy, 
compilation, abstract, or summary.



Sec. 221.44  What are the requirements for depositions?

    (a) Motion and notice. Except upon agreement of the parties, a party 
wishing to take a deposition must file a motion under Sec. 221.41(c). 
Any notice of deposition filed with the motion must state:
    (1) The time and place that the deposition is to be taken;
    (2) The name and address of the person before whom the deposition is 
to be taken;
    (3) The name and address of the witness whose deposition is to be 
taken; and
    (4) Any documents or materials that the witness is to produce.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 221.41(b) with 
respect to any discovery motion requesting the taking of a deposition. 
The order will:
    (1) Grant the motion and approve the taking of the deposition, 
subject to any conditions or restrictions the ALJ may impose; or
    (2) Deny the motion.
    (c) Arrangements. If the parties agree to or the ALJ approves the 
taking of the deposition, the party requesting the deposition must make 
appropriate arrangements for necessary facilities and personnel.
    (1) The deposition will be taken at the time and place agreed to by 
the parties or indicated in the ALJ's order.
    (2) The deposition may be taken before any disinterested person 
authorized to administer oaths in the place where the deposition is to 
be taken.
    (3) Any party that objects to the taking of a deposition because of 
the disqualification of the person before whom it is to be taken must do 
so:
    (i) Before the deposition begins; or
    (ii) As soon as the disqualification becomes known or could have 
been discovered with reasonable diligence.
    (4) A deposition may be taken by telephone conference call, if 
agreed to by the parties or approved in the ALJ's order.
    (d) Testimony. Each witness deposed must be placed under oath or 
affirmation, and the other parties must be given an opportunity for 
cross-examination.
    (e) Representation of witness. The witness being deposed may have 
counsel or another representative present during the deposition.
    (f) Recording and transcript. Except as provided in paragraph (g) of 
this section, the deposition must be stenographically recorded and 
transcribed at the expense of the party that requested the deposition.
    (1) Any other party may obtain a copy of the transcript at its own 
expense.
    (2) Unless waived by the deponent, the deponent will have 3 days 
after receiving the transcript to read and sign it.
    (3) The person before whom the deposition was taken must certify the 
transcript following receipt of the signed transcript from the deponent 
or expiration of the 3-day review period, whichever occurs first.
    (g) Video recording. The testimony at a deposition may be recorded 
on videotape, subject to any conditions or restrictions that the parties 
may agree to or the ALJ may impose, at the expense of the party 
requesting the recording.
    (1) The video recording may be in conjunction with an oral 
examination

[[Page 196]]

by telephone conference held under paragraph (c)(3) of this section.
    (2) After the deposition has been taken, the person recording the 
deposition must:
    (i) Provide a copy of the videotape to any party that requests it, 
at the requesting party's expense; and
    (ii) Attach to the videotape a statement identifying the case and 
the deponent and certifying the authenticity of the video recording.
    (h) Use of deposition. A deposition may be used at the hearing as 
provided in Sec. 221.53.



Sec. 221.45  What are the requirements for requests for documents or tangible 

things or entry on land?

    (a) Motion. Except upon agreement of the parties, a party wishing to 
request the production of designated documents or tangible things or 
entry on designated land must file a motion under Sec. 221.41(c). A 
request may include any of the following that are in the possession, 
custody, or control of another party:
    (1) The production of designated documents for inspection and 
copying, other than documents that are already in the license proceeding 
record;
    (2) The production of designated tangible things for inspection, 
copying, testing, or sampling; or
    (3) Entry on designated land or other property for inspection and 
measuring, surveying, photographing, testing, or sampling either the 
property or any designated object or operation on the property.
    (b) ALJ order. During or promptly after the initial prehearing 
conference, the ALJ will issue an order under Sec. 221.41(b) with 
respect to any discovery motion requesting the production of documents 
or tangible things or entry on land for inspection, copying, or other 
purposes. The order will:
    (1) Grant the motion and approve the use of some or all of the 
proposed requests; or
    (2) Deny the motion.
    (c) Compliance with order. Except upon agreement of the parties, the 
party to whom any approved request for production is directed must 
permit the approved inspection and other activities within 15 days after 
issuance of the order under paragraph (a) of this section.



Sec. 221.46  What sanctions may the ALJ impose for failure to comply with 

discovery?

    (a) Upon motion of a party, the ALJ may impose sanctions under 
paragraph (b) of this section if any party:
    (1) Fails to comply with an order approving discovery; or
    (2) Fails to supplement or amend a response to discovery under Sec. 
221.42(a).
    (b) The ALJ may impose one or more of the following sanctions:
    (1) Infer that the information, testimony, document, or other 
evidence withheld would have been adverse to the party;
    (2) Order that, for the purposes of the hearing, designated facts 
are established;
    (3) Order that the party not introduce into evidence, or otherwise 
rely on to support its case, any information, testimony, document, or 
other evidence:
    (i) That the party improperly withheld; or
    (ii) That the party obtained from another party in discovery;
    (4) Allow another party to use secondary evidence to show what the 
information, testimony, document, or other evidence withheld would have 
shown; or
    (5) Take other appropriate action to remedy the party's failure to 
comply.



Sec. 221.47  What are the requirements for subpoenas and witness fees?

    (a) Request for subpoena. (1) Except as provided in paragraph (a)(2) 
of this section, any party may file a motion requesting the ALJ to issue 
a subpoena to the extent authorized by law for the attendance of a 
person, the giving of testimony, or the production of documents or other 
relevant evidence during discovery or for the hearing.
    (2) A party may subpoena a senior Department employee only if the 
party shows:
    (i) That the employee's testimony is necessary in order to provide 
significant, unprivileged information that is not available from any 
other source or by less burdensome means; and
    (ii) That the employee's attendance would not significantly 
interfere with

[[Page 197]]

the ability to perform his or her government duties.
    (b) Service. (1) A subpoena may be served by any person who is not a 
party and is 18 years of age or older.
    (2) Service must be made by hand delivering a copy of the subpoena 
to the person named therein.
    (3) The person serving the subpoena must:
    (i) Prepare a certificate of service setting forth:
    (A) The date, time, and manner of service; or
    (B) The reason for any failure of service; and
    (ii) Swear to or affirm the certificate, attach it to a copy of the 
subpoena, and return it to the party on whose behalf the subpoena was 
served.
    (c) Witness fees. (1) A party who subpoenas a witness who is not a 
party must pay him or her the same fees and mileage expenses that are 
paid witnesses in the district courts of the United States.
    (2) A witness who is not a party and who attends a deposition or 
hearing at the request of any party without having been subpoenaed to do 
so is entitled to the same fees and mileage expenses as if he or she had 
been subpoenaed. However, this paragraph does not apply to federal 
employees who are called as witnesses by a Department.
    (d) Motion to quash. (1) A person to whom a subpoena is directed may 
request by motion that the ALJ quash or modify the subpoena.
    (2) The motion must be filed:
    (i) Within 5 days after service of the subpoena; or
    (ii) At or before the time specified in the subpoena for compliance, 
if that is less than 5 days after service of the subpoena.
    (3) The ALJ may quash or modify the subpoena if it:
    (i) Is unreasonable;
    (ii) Requires evidence during discovery that is not discoverable; or
    (iii) Requires evidence during a hearing that is privileged or 
irrelevant.
    (e) Enforcement. For good cause shown, the ALJ may apply to the 
appropriate United States District Court for the issuance of an order 
compelling the appearance and testimony of a witness or the production 
of evidence as set forth in a subpoena that has been duly issued and 
served.

                     Hearing, Briefing, and Decision



Sec. 221.50  When and where will the hearing be held?

    (a) Except as provided in paragraph (b) of this section, the hearing 
will be held at the time and place set at the initial prehearing 
conference under Sec. 221.40, generally within 15 days after the date 
set for completion of discovery.
    (b) On motion by a party or on the ALJ's initiative, the ALJ may 
change the date, time, or place of the hearing if he or she finds:
    (1) That there is good cause for the change; and
    (2) That the change will not unduly prejudice the parties and 
witnesses.



Sec. 221.51  What are the parties' rights during the hearing?

    Consistent with the provisions of this subpart, each party has the 
following rights during the hearing, as necessary to assure full and 
accurate disclosure of the facts:
    (a) To present direct and rebuttal evidence;
    (b) To make objections, motions, and arguments; and
    (c) To cross-examine witnesses and to conduct re-direct and re-cross 
examination as permitted by the ALJ.



Sec. 221.52  What are the requirements for presenting testimony?

    (a) Written direct testimony. Unless otherwise ordered by the ALJ, 
all direct hearing testimony must be prepared and submitted in written 
form.
    (1) Prepared written testimony must:
    (i) Have line numbers inserted in the left-hand margin of each page;
    (ii) Be authenticated by an affidavit or declaration of the witness;
    (iii) Be filed within 5 days after the date set for completion of 
discovery, unless the ALJ sets a different deadline; and
    (iv) Be offered as an exhibit during the hearing.
    (2) Any witness submitting written testimony must be available for 
cross-examination at the hearing.
    (b) Oral testimony. Oral examination of a witness in a hearing, 
including on

[[Page 198]]

cross-examination or redirect, must be conducted under oath and in the 
presence of the ALJ, with an opportunity for all parties to question the 
witness.
    (c) Telephonic testimony. The ALJ may by order allow a witness to 
testify by telephonic conference call.
    (1) The arrangements for the call must let each party listen to and 
speak to the witness and each other within the hearing of the ALJ.
    (2) The ALJ will ensure the full identification of each speaker so 
the reporter can create a proper record.
    (3) The ALJ may issue a subpoena under Sec. 221.47 directing a 
witness to testify by telephonic conference call.



Sec. 221.53  How may a party use a deposition in the hearing?

    (a) In general. Subject to the provisions of this section, a party 
may use in the hearing any part or all of a deposition taken under Sec. 
221.44 against any party who:
    (1) Was present or represented at the taking of the deposition; or
    (2) Had reasonable notice of the taking of the deposition.
    (b) Admissibility. (1) No part of a deposition will be included in 
the hearing record, unless received in evidence by the ALJ.
    (2) The ALJ will exclude from evidence any question and response to 
which an objection:
    (i) Was noted at the taking of the deposition; and
    (ii) Would have been sustained if the witness had been personally 
present and testifying at a hearing.
    (3) If a party offers only part of a deposition in evidence:
    (i) An adverse party may require the party to introduce any other 
part that ought in fairness to be considered with the part introduced; 
and
    (ii) Any other party may introduce any other parts.
    (c) Videotaped deposition. If the deposition was recorded on 
videotape and is admitted into evidence, relevant portions will be 
played during the hearing and transcribed into the record by the 
reporter.



Sec. 221.54  What are the requirements for exhibits, official notice, and 

stipulations?

    (a) General. (1) Except as provided in paragraphs (b) through (e) of 
this section, any material offered in evidence, other than oral 
testimony, must be offered in the form of an exhibit.
    (2) Each exhibit offered by a party must be marked for 
identification.
    (3) Any party who seeks to have an exhibit admitted into evidence 
must provide:
    (i) The original of the exhibit to the reporter, unless the ALJ 
permits the substitution of a copy; and
    (ii) A copy of the exhibit to the ALJ.
    (b) Material not offered. If a document offered as an exhibit 
contains material not offered as evidence:
    (1) The party offering the exhibit must:
    (i) Designate the matter offered as evidence;
    (ii) Segregate and exclude the material not offered in evidence, to 
the extent practicable; and
    (iii) Provide copies of the entire document to the other parties 
appearing at the hearing.
    (2) The ALJ must give the other parties an opportunity to inspect 
the entire document and offer in evidence any other portions of the 
document.
    (c) Official notice. (1) At the request of any party at the hearing, 
the ALJ may take official notice of any matter of which the courts of 
the United States may take judicial notice, including the public records 
of NMFS and any other Department party.
    (2) The ALJ must give the other parties appearing at the hearing an 
opportunity to show the contrary of an officially noticed fact.
    (3) Any party requesting official notice of a fact after the 
conclusion of the hearing must show good cause for its failure to 
request official notice during the hearing.
    (d) Stipulations. (1) The parties may stipulate to any relevant 
facts or to the authenticity of any relevant documents.
    (2) If received in evidence at the hearing, a stipulation is binding 
on the stipulating parties.
    (3) A stipulation may be written or made orally at the hearing.

[[Page 199]]



Sec. 221.55  What evidence is admissible at the hearing?

    (a) General. (1) Subject to the provisions of Sec. 221.42(b), the 
ALJ may admit any written, oral, documentary, or demonstrative evidence 
that is:
    (i) Relevant, reliable, and probative; and
    (ii) Not privileged or unduly repetitious or cumulative.
    (2) The ALJ may exclude evidence if its probative value is 
substantially outweighed by the risk of undue prejudice, confusion of 
the issues, or delay.
    (3) Hearsay evidence is admissible. The ALJ may consider the fact 
that evidence is hearsay when determining its probative value.
    (4) The Federal Rules of Evidence do not directly apply to the 
hearing, but may be used as guidance by the ALJ and the parties in 
interpreting and applying the provisions of this section.
    (b) Objections. Any party objecting to the admission or exclusion of 
evidence shall concisely state the grounds. A ruling on every objection 
must appear in the record.



Sec. 221.56  What are the requirements for transcription of the hearing?

    (a) Transcript and reporter's fees. The hearing will be transcribed 
verbatim.
    (1) The Department of Commerce's designated ALJ office will secure 
the services of a reporter and pay the reporter's fees to provide an 
original transcript to the Department of Commerce's designated ALJ 
office on an expedited basis.
    (2) Each party must pay the reporter for any copies of the 
transcript obtained by that party.
    (b) Transcript Corrections. (1) Any party may file a motion 
proposing corrections to the transcript. The motion must be filed within 
5 days after receipt of the transcript, unless the ALJ sets a different 
deadline.
    (2) Unless a party files a timely motion under paragraph (b)(1) of 
this section, the transcript will be presumed to be correct and 
complete, except for obvious typographical errors.
    (3) As soon as practicable after the close of the hearing and after 
consideration of any motions filed under paragraph (b)(1) of this 
section, the ALJ will issue an order making any corrections to the 
transcript that the ALJ finds are warranted.



Sec. 221.57  What is the standard of proof?

    The standard of proof is a preponderance of the evidence.



Sec. 221.58  When will the hearing record close?

    (a) The hearing record will close when the ALJ closes the hearing, 
unless he or she directs otherwise.
    (b) Evidence may not be added after the hearing record is closed, 
but the transcript may be corrected under Sec. 221.56(b).



Sec. 221.59  What are the requirements for post-hearing briefs?

    (a) General. (1) Each party may file a post-hearing brief within 10 
days after the close of the hearing, unless the ALJ sets a different 
deadline.
    (2) A party may file a reply brief only if requested by the ALJ. The 
deadline for filing a reply brief, if any, will be set by the ALJ.
    (3) The ALJ may limit the length of the briefs to be filed under 
this section.
    (b) Content. (1) An initial brief must include:
    (i) A concise statement of the case;
    (ii) A separate section containing proposed findings regarding the 
issues of material fact, with supporting citations to the hearing 
record;
    (iii) Arguments in support of the party's position; and
    (iv) Any other matter required by the ALJ.
    (2) A reply brief, if requested by the ALJ, must be limited to any 
issues identified by the ALJ.
    (c) Form. (1) An exhibit admitted in evidence or marked for 
identification in the record may not be reproduced in the brief.
    (i) Such an exhibit may be reproduced, within reasonable limits, in 
an appendix to the brief.
    (ii) Any pertinent analysis of an exhibit may be included in a 
brief.
    (2) If a brief exceeds 20 pages, it must contain:
    (i) A table of contents and of points made, with page references; 
and
    (ii) An alphabetical list of citations to legal authority, with page 
references.

[[Page 200]]



Sec. 221.60  What are the requirements for the ALJ's decision?

    (a) Timing. The ALJ must issue a decision within the shorter of the 
following time periods:
    (1) 30 days after the close of the hearing under Sec. 221.58; or
    (2) 90 days after issuance of the referral notice under Sec. 
221.25(c), 7 CFR 1.625(c), or 43 CFR 45.25(c).
    (b) Content. (1) The decision must contain:
    (i) Findings of fact on all disputed issues of material fact;
    (ii) Conclusions of law necessary to make the findings of fact (such 
as rulings on materiality and on the admissibility of evidence); and
    (iii) Reasons for the findings and conclusions.
    (2) The ALJ may adopt any of the findings of fact proposed by one or 
more of the parties.
    (3) The decision will not contain conclusions as to whether any 
preliminary condition or prescription should be adopted, modified, or 
rejected, or whether any proposed alternative should be adopted or 
rejected.
    (c) Service. Promptly after issuing his or her decision, the ALJ 
must:
    (1) Serve the decision on each party to the hearing; and
    (2) Forward a copy of the decision to FERC, along with the complete 
hearing record, for inclusion in the license proceeding record.
    (d) Finality. The ALJ's decision under this section will be final, 
with respect to the disputed issues of material fact, for NMFS and any 
other Department involved in the hearing. To the extent the ALJ's 
decision forms the basis for any condition or prescription subsequently 
included in the license, it may be subject to judicial review under 16 
U.S.C. 825l(b).



                     Subpart C_Alternatives Process



Sec. 221.70  How must documents be filed and served under this subpart?

    (a) Filing. (1) A document under this subpart must be filed using 
one of the methods set forth in Sec. 221.12(b).
    (2) A document is considered filed on the date it is received. 
However, any document received after 5 p.m. at the place where the 
filing is due is considered filed on the next regular business day.
    (b) Service. (1) Any document filed under this subpart must be 
served at the same time the document is delivered or sent for filing. A 
complete copy of the document must be served on each license party and 
FERC, using:
    (i) One of the methods of service in Sec. 221.13(c); or
    (ii) Regular mail.
    (2) The provisions of Sec. 221.13(d) and (e) regarding 
acknowledgment and certificate of service apply to service under this 
subpart.



Sec. 221.71  How do I propose an alternative?

    (a) General. To propose an alternative, you must:
    (1) Be a license party; and
    (2) File a written proposal with the Office of Habitat Conservation 
within 30 days after the deadline for NMFS to file preliminary 
prescriptions with FERC.
    (b) Content. Your proposal must include:
    (1) A description of the alternative, in an equivalent level of 
detail to NMFS's preliminary prescription;
    (2) An explanation of how the alternative will be no less protective 
than the fishway prescribed by NMFS;
    (3) An explanation of how the alternative, as compared to the 
preliminary prescription, will:
    (i) Cost significantly less to implement; or
    (ii) Result in improved operation of the project works for 
electricity production;
    (4) An explanation of how the alternative will affect:
    (i) Energy supply, distribution, cost, and use;
    (ii) Flood control;
    (iii) Navigation;
    (iv) Water supply;
    (v) Air quality; and
    (vi) Other aspects of environmental quality; and
    (5) Specific citations to any scientific studies, literature, and 
other documented information relied on to support your proposal, 
including any assumptions you are making (e.g., regarding the cost of 
energy or the rate of inflation). If any such document is

[[Page 201]]

not already in the license proceeding record, you must provide a copy 
with the proposal.



Sec. 221.72  What will NMFS do with a proposed alternative?

    If any license party proposes an alternative to a preliminary 
prescription under Sec. 221.71(a)(1), NMFS must do the following within 
60 days after the deadline for filing comments to FERC's NEPA document 
under 18 CFR 5.25(c):
    (a) Analyze the alternative under Sec. 221.73; and
    (b) File with FERC:
    (1) Any prescription that NMFS adopts as its modified prescription; 
and
    (2) Its analysis of the modified prescription and any proposed 
alternatives under Sec. 221.73(c).



Sec. 221.73  How will NMFS analyze a proposed alternative and formulate its 

modified prescription?

    (a) In deciding whether to adopt a proposed alternative, NMFS must 
consider evidence and supporting material provided by any license party 
or otherwise available to NMFS including:
    (1) Any evidence on the implementation costs or operational impacts 
for electricity production of the proposed alternative;
    (2) Any comments received on NMFS's preliminary prescription;
    (3) Any ALJ decision on disputed issues of material fact issued 
under Sec. 221.60 with respect to the preliminary prescription;
    (4) Comments received on any draft or final NEPA documents; and
    (5) The license party's proposal under Sec. 221.71.
    (b) NMFS must adopt a proposed alternative if NMFS determines, based 
on substantial evidence provided by any license party or otherwise 
available to NMFS, that the alternative will be no less protective than 
NMFS's preliminary prescription and will, as compared to NMFS's 
preliminary prescription:
    (1) Cost significantly less to implement; or
    (2) Result in improved operation of the project works for 
electricity production.
    (c) When NMFS files with FERC the prescription that NMFS adopts as 
its modified prescription under Sec. Sec. 221.72(b), it must also file:
    (1) A written statement explaining:
    (i) The basis for the adopted prescription; and
    (ii) If NMFS is not adopting any alternative, its reasons for not 
doing so; and
    (2) Any study, data, and other factual information relied on that is 
not already part of the licensing proceeding record.
    (d) The written statement under paragraph (c)(1) of this section 
must demonstrate that NMFS gave equal consideration to the effects of 
the prescription adopted and any alternative prescription not adopted 
on:
    (1) Energy supply, distribution, cost, and use;
    (2) Flood control;
    (3) Navigation;
    (4) Water supply;
    (5) Air quality; and
    (6) Preservation of other aspects of environmental quality.



Sec. 221.74  Has OMB approved the information collection provisions of this 

subpart?

    Yes. This rule contains provisions that would collect information 
from the public. It therefore requires approval by the Office of 
Management and Budget (OMB) under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq. (PRA). According to the PRA, a Federal agency may 
not conduct or sponsor, and a person is not required to respond to, a 
collection of information unless it displays a currently valid OMB 
control number that indicates OMB approval. OMB has reviewed the 
information collection in this rule and approved it under OMB control 
number 1094-0001.



PART 222_GENERAL ENDANGERED AND THREATENED MARINE SPECIES--Table of Contents




              Subpart A_Introduction and General Provisions

Sec.
222.101 Purpose and scope of regulations.
222.102 Definitions.
222.103 Federal/state cooperation in the conservation of endangered and 
          threatened species.

[[Page 202]]

Subpart B_Certificates of Exemption for Pre-Act Endangered Species Parts

222.201 General requirements.
222.202 Certificate renewal.
222.203 Modification, amendment, suspension, and revocation of 
          certificates.
222.204 Administration of certificates.
222.205 Import and export requirements.

                   Subpart C_General Permit Procedures

222.301 General requirements.
222.302 Procedure for obtaining permits.
222.303 Issuance of permits.
222.304 Renewal of permits.
222.305 Rights of succession and transfer of permits.
222.306 Modification, amendment, suspension, cancellation, and 
          revocation of permits.
222.307 Permits for incidental taking of species.
222.308 Permits for scientific purposes or for the enhancement of 
          propagation or survival of species.
222.309 Permits for listed species of sea turtles involving the Fish and 
          Wildlife Service.
222.310 Permit authority for designated agents and employees of 
          specified Federal and state agencies.

                     Subpart D_Observer Requirement

222.401 Observer requirement.
222.402 Annual determination of fisheries to be observed; notice and 
          comment.
222.403 Duration of selection; effective date.
222.404 Observer program sampling.

    Authority: 16 U.S.C. 1531 et seq.; 16 U.S.C. 742a et seq.
    Section 222.403 also issued under 16 U.S.C. 1361 et seq.

    Source: 64 FR 14054, Mar. 23, 1999, unless otherwise noted.



              Subpart A_Introduction and General Provisions



Sec. 222.101  Purpose and scope of regulations.

    (a) The regulations of parts 222, 223, and 224 of this chapter 
implement the Endangered Species Act (Act), and govern the taking, 
possession, transportation, sale, purchase, barter, exportation, 
importation of, and other requirements pertaining to wildlife and plants 
under the jurisdiction of the Secretary of Commerce and determined to be 
threatened or endangered pursuant to section 4(a) of the Act. These 
regulations are implemented by the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, This part pertains to general provisions and definitions. 
Specifically, parts 223 and 224 pertain to provisions to threatened 
species and endangered species, respectively. Part 226 enumerates 
designated critical habitat for endangered and threatened species. 
Certain of the endangered and threatened marine species enumerated in 
Sec. Sec. 224.102 and 223.102 are included in Appendix I or II to the 
Convention on International Trade of Endangered Species of Wild Fauna 
and Flora. The importation, exportation, and re-exportation of such 
species are subject to additional regulations set forth at 50 CFR part 
23, chapter I.
    (b) For rules and procedures relating to species determined to be 
threatened or endangered under the jurisdiction of the Secretary of the 
Interior, see 50 CFR parts 10 through 17. For rules and procedures 
relating to the general implementation of the Act jointly by the 
Departments of the Interior and Commerce and for certain species under 
the joint jurisdiction of both the Secretaries of the Interior and 
Commerce, see 50 CFR Chapter IV. Marine mammals listed as endangered or 
threatened and subject to these regulations may also be subject to 
additional requirements pursuant to the Marine Mammal Protection Act 
(for regulations implementing that act, see 50 CFR part 216).
    (c) No statute or regulation of any state shall be construed to 
relieve a person from the restrictions, conditions, and requirements 
contained in parts 222, 223, and 224 of this chapter. In addition, 
nothing in parts 222, 223, and 224 of this chapter, including any permit 
issued pursuant thereto, shall be construed to relieve a person from any 
other requirements imposed by a statute or regulation of any state or of 
the United States, including any applicable health, quarantine, 
agricultural, or customs laws or regulations, or any other National 
Marine Fisheries Service enforced statutes or regulations.

[[Page 203]]



Sec. 222.102  Definitions.

    Accelerator funnel means a device used to accelerate the flow of 
water through a shrimp trawl net.
    Act means the Endangered Species Act of 1973, as amended, 16 U.S.C. 
1531 et seq.
    Adequately covered means, with respect to species listed pursuant to 
section 4 of the Act, that a proposed conservation plan has satisfied 
the permit issuance criteria under section 10(a)(2)(B) of the Act for 
the species covered by the plan and, with respect to unlisted species, 
that a proposed conservation plan has satisfied the permit issuance 
criteria under section 10(a)(2)(B) of the Act that would otherwise apply 
if the unlisted species covered by the plan were actually listed. For 
the Services to cover a species under a conservation plan, it must be 
listed on the section 10(a)(1)(B) permit.
    Alaska Regional Administrator means the Regional Administrator for 
the Alaska Region of the National Marine Fisheries Service, National 
Oceanic and Atmospheric Administration, U.S. Department of Commerce, or 
their authorized representative. Mail sent to the Alaska Regional 
Administrator should be addressed: Alaska Regional Administrator, F/AK, 
Alaska Regional Office, National Marine Fisheries Service, NOAA, P.O. 
Box 21668 Juneau, AK 99802-1668.
    Approved turtle excluder device (TED) means a device designed to be 
installed in a trawl net forward of the cod end for the purpose of 
excluding sea turtles from the net, as described in 50 CFR 223.207.
    Assistant Administrator means the Assistant Administrator for 
Fisheries of the National Marine Fisheries Service, National Oceanic and 
Atmospheric Administration, U.S. Department of Commerce, or his 
authorized representative. Mail sent to the Assistant Administrator 
should be addressed: Assistant Administrator for Fisheries, National 
Marine Fisheries Service, NOAA, 1315 East-West Highway, Silver Spring, 
MD 20910.
    Atlantic Area means all waters of the Atlantic Ocean south of 
36[deg]33[min]00.8[sec] N. lat. (the line of the North Carolina/Virginia 
border) and adjacent seas, other than waters of the Gulf Area, and all 
waters shoreward thereof (including ports).
    Atlantic Shrimp Fishery--Sea Turtle Conservation Area (Atlantic 
SFSTCA) means the inshore and offshore waters extending to 10 nautical 
miles (18.5 km) offshore along the coast of the States of Georgia and 
South Carolina from the Georgia-Florida border (defined as the line 
along 30[deg]42[min]45.6[sec] N. lat.) to the North Carolina-South 
Carolina border (defined as the line extending in a direction of 
135[deg]34[min]55[sec] from true north from the North Carolina-South 
Carolina land boundary, as marked by the border station on Bird Island 
at 33[deg]51[min]07.9[sec] N. lat., 078[deg]32[min]32.6[sec] W. long.).
    Authorized officer means:
    (1) Any commissioned, warrant, or petty officer of the U.S. Coast 
Guard;
    (2) Any special agent or enforcement officer of the National Marine 
Fisheries Service;
    (3) Any officer designated by the head of a Federal or state agency 
that has entered into an agreement with the Secretary or the Commandant 
of the Coast Guard to enforce the provisions of the Act; or
    (4) Any Coast Guard personnel accompanying and acting under the 
direction of any person described in paragraph (1) of this definition.
    Bait shrimper means a shrimp trawler that fishes for and retains its 
shrimp catch alive for the purpose of selling it for use as bait.
    Beam trawl means a trawl with a rigid frame surrounding the mouth 
that is towed from a vessel by means of one or more cables or ropes.
    Certificate of exemption means any document so designated by the 
National Marine Fisheries Service and signed by an authorized official 
of the National Marine Fisheries Service, including any document which 
modifies, amends, extends or renews any certificate of exemption.
    Chain mat means a device designed to be installed in a scallop 
dredge forward of the sweep, as described in 50 CFR 223.206, for the 
purpose of excluding sea turtles from the dredge.
    Changed circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that can 
reasonably be anticipated by plan developers and NMFS

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and that can be planned for (e.g., the listing of new species, or a fire 
or other natural catastrophic event in areas prone to such events).
    Commercial activity means all activities of industry and trade, 
including, but not limited to, the buying or selling of commodities and 
activities conducted for the purpose of facilitating such buying and 
selling: Provided, however, that it does not include the exhibition of 
commodities by museums or similar cultural or historical organizations.
    Conservation plan means the plan required by section 10(a)(2)(A) of 
the Act that an applicant must submit when applying for an incidental 
take permit. Conservation plans also are known as ``habitat conservation 
plans'' or ``HCPs.''
    Conserved habitat areas means areas explicitly designated for 
habitat restoration, acquisition, protection, or other conservation 
purposes under a conservation plan.
    Cooperative Agreement means an agreement between a state(s) and the 
National Marine Fisheries Service, NOAA, Department of Commerce, which 
establishes and maintains an active and adequate program for the 
conservation of resident species listed as endangered or threatened 
pursuant to section 6(c)(1) of the Endangered Species Act.
    Dredge or dredge gear, with respect to the fishery operating under 
the Atlantic Sea Scallop Fishery Management Plan, means gear consisting 
of a mouth frame attached to a holding bag constructed of metal rings, 
or any other modification to this design, that can be or is used in the 
harvest of sea scallops.
    Fishing, or to fish, means:
    (1) The catching, taking, or harvesting of fish or wildlife;
    (2) The attempted catching, taking, or harvesting of fish or 
wildlife;
    (3) Any other activity that can reasonably be expected to result in 
the catching, taking, or harvesting of fish or wildlife; or
    (4) Any operations on any waters in support of, or in preparation 
for, any activity described in paragraphs (1) through (3) of this 
definition.
    Footrope means a weighted rope or cable attached to the lower lip 
(bottom edge) of the mouth of a trawl net along the forward most 
webbing.
    Footrope length means the distance between the points at which the 
ends of the footrope are attached to the trawl net, measured along the 
forward-most webbing.
    Foreign commerce includes, among other things, any transaction 
between persons within one foreign country, or between persons in two or 
more foreign countries, or between a person within the United States and 
a person in one or more foreign countries, or between persons within the 
United States, where the fish or wildlife in question are moving in any 
country or countries outside the United States.
    Four-seam, straight-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing are parallel over the entire length.
    Four-seam, tapered-wing trawl means a design of shrimp trawl in 
which the main body of the trawl is formed from a top panel, a bottom 
panel, and two side panels of webbing. The upper and lower edges of the 
side panels of webbing converge toward the rear of the trawl.
    Gillnet means a panel of netting, suspended vertically in the water 
by floats along the top and weights along the bottom, to entangle fish 
that attempt to pass through it.
    Gulf Area means all waters of the Gulf of Mexico west of 81[deg] W. 
long. (the line at which the Gulf Area meets the Atlantic Area) and all 
waters shoreward thereof (including ports).
    Gulf Shrimp Fishery-Sea Turtle Conservation Area (Gulf SFSTCA) means 
the offshore waters extending to 10 nautical miles (18.5 km) offshore 
along the coast of the States of Texas and Louisiana from the South Pass 
of the Mississippi River (west of 89[deg]08.5[min] W. long.) to the 
U.S.-Mexican border.
    Habitat restoration activity means an activity that has the sole 
objective of restoring natural aquatic or riparian habitat conditions or 
processes.
    Harm in the definition of ``take'' in the Act means an act which 
actually kills or injures fish or wildlife. Such an act may include 
significant habitat

[[Page 205]]

modification or degradation which actually kills or injures fish or 
wildlife by significantly impairing essential behavioral patterns, 
including, breeding, spawning, rearing, migrating, feeding or 
sheltering.
    Headrope means a rope that is attached to the upper lip (top edge) 
of the mouth of a trawl net along the forward-most webbing.
    Headrope length means the distance between the points at which the 
ends of the headrope are attached to the trawl net, measured along the 
forward-most webbing.
    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 meaning 
of the tariff laws of the United States.
    Inshore means marine and tidal waters landward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.
    Modified pound net leader means a pound net leader that is affixed 
to or resting on the sea floor and made of a lower portion of mesh and 
an upper portion of only vertical lines such that: The mesh size is 
equal to or less than 8 inches (20.3 cm) stretched mesh; at any 
particular point along the leader the height of the mesh from the 
seafloor to the top of the mesh must be no more than one-third the depth 
of the water at mean lower low water directly above that particular 
point; the mesh is held in place by vertical lines that extend from the 
top of the mesh up to a top line, which is a line that forms the 
uppermost part of the pound net leader; the vertical lines are equal to 
or greater than \5/16\ inch (0.8 cm) in diameter and strung vertically 
at a minimum of every 2 feet (61 cm); and the vertical lines are hard 
lay lines with a level of stiffness equivalent to the stiffness of a \5/
16\ inch (0.8 cm) diameter line composed of polyester wrapped around a 
blend of polypropylene and polyethylene and containing approximately 42 
visible twists of strands per foot of line.
    Northeast Regional Administrator means the Regional Administrator 
for the Northeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northeast 
Regional Administrator should be addressed: Northeast Regional 
Administrator, F/NE, Northeast Regional Office, National Marine 
Fisheries Service, NOAA, One Blackburn Drive, Gloucester, MA 01930-2298.
    Northwest Regional Administrator means the Regional Administrator 
for the Northwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Northwest 
Regional Administrator should be addressed: Northwest Regional 
Administrator, F/NW, Northwest Regional Office, National Marine 
Fisheries Service, NOAA, 7600 Sand Point Way NE, Seattle, WA 98115-0070.
    Office of Enforcement means the national fisheries enforcement 
office of the National Marine Fisheries Service. Mail sent to the Office 
of Enforcement should be addressed: Office of Enforcement, F/EN, 
National Marine Fisheries Service, NOAA, 8484 Suite 415, Georgia Ave., 
Silver Spring, MD 20910.
    Office of Protected Resources means the national program office of 
the endangered species and marine mammal programs of the National Marine 
Fisheries Service. Mail sent to the Office of Protected Resources should 
be addressed: Office of Protected Resources, F/PR, National Marine 
Fisheries Service, NOAA, 1315 East West Highway, Silver Spring, MD 
20910.
    Offshore means marine and tidal waters seaward of the 72 COLREGS 
demarcation line (International Regulations for Preventing Collisions at 
Sea, 1972), as depicted or noted on nautical charts published by the 
National Oceanic and Atmospheric Administration (Coast Charts, 1:80,000 
scale) and as described in 33 CFR part 80.

[[Page 206]]

    Operating conservation program means those conservation management 
activities which are expressly agreed upon and described in a 
Conservation Plan or its Implementing Agreement. These activities are to 
be undertaken for the affected species when implementing an approved 
Conservation Plan, including measures to respond to changed 
circumstances.
    Permit means any document so designated by the National Marine 
Fisheries Service and signed by an authorized official of the National 
Marine Fisheries Service, including any document which modifies, amends, 
extends, or renews any permit.
    Person means an individual, corporation, partnership, trust, 
association, or any other private entity, or any officer, employee, 
agent, department, or instrumentality of the Federal government of any 
state or political subdivision thereof or of any foreign government.
    Possession means the detention and control, or the manual or ideal 
custody of anything that may be the subject of property, for one's use 
and enjoyment, either as owner or as the proprietor of a qualified right 
in it, and either held personally or by another who exercises it in 
one's place and name. Possession includes the act or state of possessing 
and that condition of facts under which persons can exercise their power 
over a corporeal thing at their pleasure to the exclusion of all other 
persons. Possession includes constructive possession that which means 
not an actual but an assumed existence one claims to hold by virtue of 
some title, without having actual custody.
    Pound net leader means a long straight net that directs the fish 
offshore towards the pound, an enclosure that captures the fish. Some 
pound net leaders are all mesh, while others have stringers and mesh. 
Stringers are vertical lines in a pound net leader that are spaced a 
certain distance apart and are not crossed by horizontal lines to form 
mesh. An offshore pound net leader refers to a leader with the inland 
end set greater than 10 horizontal feet (3 m) from the mean low water 
line. A nearshore pound net leader refers to a leader with the inland 
end set 10 horizontal feet (3 m) or less from the mean low water line.
    Pound Net Regulated Area I means Virginia waters of the mainstem 
Chesapeake Bay, south of 37[deg]19.0[min] N. lat. and west of 
76[deg]13.0[min] W. long., and all waters south of 37[deg]13.0[min] N. 
lat. to the Chesapeake Bay Bridge Tunnel (extending from approximately 
37[deg]05[min] N. lat., 75[deg]59[min] W. long. to 36[deg]55[min] N. 
lat., 76[deg]08[min] W. long.) at the mouth of the Chesapeake Bay, and 
the portion of the James River downstream of the Hampton Roads Bridge 
Tunnel (I-64; approximately 36[deg]59.55[min] N. lat., 76[deg]18.64[min] 
W. long.) and the York River downstream of the Coleman Memorial Bridge 
(Route 17; approximately 37[deg]14.55[min] N. lat, 76[deg]30.40[min] W. 
long.)
    Pound Net Regulated Area II means Virginia waters of the Chesapeake 
Bay outside of Pound Net Regulated Area I defined above, extending to 
the Maryland-Virginia State line (approximately 37[deg]55[min] N. lat., 
75[deg]55[min] W. long.), the Great Wicomico River downstream of the 
Jessie Dupont Memorial Highway Bridge (Route 200; approximately 
37[deg]50.84[min] N. lat, 76[deg]22.09[min] W. long.), the Rappahannock 
River downstream of the Robert Opie Norris Jr. Bridge (Route 3; 
approximately 37[deg]37.44[min] N. lat, 76[deg]25.40[min] W. long.), and 
the Piankatank River downstream of the Route 3 Bridge (approximately 
37[deg]30.62[min] N. lat, 76[deg]25.19[min] W. long.) to the COLREGS 
line at the mouth of the Chesapeake Bay.
    Pre-Act endangered species part means any sperm whale oil, including 
derivatives and products thereof, which was lawfully held within the 
United States on December 28, 1973, in the course of a commercial 
activity; or any finished scrimshaw product, if such product or the raw 
material for such product was lawfully held within the United States on 
December 28, 1973, in the course of a commercial activity.
    Properly implemented conservation plan means any conservation plan, 
implementing agreement, or permit whose commitments and provisions have 
been or are being fully implemented by the permittee.
    Pusher-head trawl (chopsticks) means a trawl that is spread by two 
poles suspended from the bow of the trawler in an inverted ``V'' 
configuration.

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    Resident species means, for purposes of entering into cooperative 
agreements with any state pursuant to section 6(c) of the Act, a species 
that exists in the wild in that state during any part of its life.
    Right whale means, as used in Sec. 224.103(c), any whale that is a 
member of the western North Atlantic population of the northern right 
whale species (Eubalaena glacialis).
    Roller trawl means a variety of beam trawl that is used, usually by 
small vessels, for fishing over uneven or vegetated sea bottoms.
    Scrimshaw product means any art form which involves the substantial 
etching or engraving of designs upon, or the substantial carving of 
figures, patterns, or designs from any bone or tooth of any marine 
mammal of the order Cetacea. For purposes of this part, polishing or the 
adding of minor superficial markings does not constitute substantial 
etching, engraving, or carving.
    Secretary means the Secretary of Commerce or an authorized 
representative.
    Shrimp means any species of marine shrimp (Order Crustacea) found in 
the Atlantic Area or the Gulf Area, including, but not limited to:
    (1) Brown shrimp (Penaeus aztecus).
    (2) White shrimp (Penaeus setiferus).
    (3) Pink shrimp (Penaeus duorarum).
    (4) Rock shrimp (Sicyonia brevirostris).
    (5) Royal red shrimp (Hymenopenaeus robustus).
    (6) Seabob shrimp (Xiphopenaeus kroyeri).
    Shrimp trawler means any vessel that is equipped with one or more 
trawl nets and that is capable of, or used for, fishing for shrimp, or 
whose on-board or landed catch of shrimp is more than 1 percent, by 
weight, of all fish comprising its on-board or landed catch.
    Skimmer trawl means a trawl that is fished along the side of the 
vessel and is held open by a rigid frame and a lead weight. On its 
outboard side, the trawl is held open by one side of the frame extending 
downward and, on its inboard side, by a lead weight attached by cable or 
rope to the bow of the vessel.
    Southeast Regional Administrator means the Regional Administrator 
for the Southeast Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southeast 
Regional Administrator should be addressed: Southeast Regional 
Administrator, F/SE, Southeast Regional Office, National Marine 
Fisheries Service, NOAA, 9721 Executive Center Drive N., St. Petersburg, 
FL 33702-2432.
    Southwest Regional Administrator means the Regional Administrator 
for the Southwest Region of the National Marine Fisheries Service, 
National Oceanic and Atmospheric Administration, U.S. Department of 
Commerce, or their authorized representative. Mail sent to the Southwest 
Regional Administrator should be addressed: Southwest Regional 
Administrator, F/SW, Southwest Regional Office, National Marine 
Fisheries Service, NOAA, 501 West Ocean Blvd, Suite 4200, Long Beach, CA 
90802-4213.
    Stretched mesh size means the distance between the centers of the 
two opposite knots in the same mesh when pulled taut.
    Summer flounder means the species Paralichthys dentatus.
    Summer flounder fishery-sea turtle protection area means all 
offshore waters, bounded on the north by a line along 37[deg]05[min] N. 
lat. (Cape Charles, VA) and bounded on the south by a line extending in 
a direction of 135[deg]34[min]55[sec] from true north from the North 
Carolina-South Carolina land boundary, as marked by the border station 
on Bird Island at 33[deg]51[min]07.9[sec] N. lat., 
078[deg]32[min]32.6[sec] W. long.(the North Carolina-South Carolina 
border).
    Summer flounder trawler means any vessel that is equipped with one 
or more bottom trawl nets and that is capable of, or used for, fishing 
for flounder or whose on-board or landed catch of flounder is more than 
100 lb (45.4 kg).
    Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, 
capture, or collect, or to attempt to harass, harm, pursue, hunt, shoot, 
wound, kill, trap, capture, or collect.
    Taper, in reference to the webbing used in trawls, means the angle 
of a cut used to shape the webbing, expressed as the ratio between the 
cuts

[[Page 208]]

that reduce the width of the webbing by cutting into the panel of 
webbing through one row of twine (bar cuts) and the cuts that extend the 
length of the panel of webbing by cutting straight aft through two 
adjoining rows of twine (point cuts). For example, sequentially cutting 
through the lengths of twine on opposite sides of a mesh, leaving an 
uncut edge of twines all lying in the same line, produces a relatively 
strong taper called ``all-bars''; making a sequence of 4-bar cuts 
followed by 1-point cut produces a more gradual taper called ``4 bars to 
1 point'' or ``4b1p''; similarly, making a sequence of 2-bar cuts 
followed by 1-point cut produces a still more gradual taper called 
``2b1p''; and making a sequence of cuts straight aft does not reduce the 
width of the panel and is called a ``straight'' or ``all-points'' cut.
    Taut means a condition in which there is no slack in the net 
webbing.
    Test net, or try net, means a net pulled for brief periods of time 
just before, or during, deployment of the primary net(s) in order to 
test for shrimp concentrations or determine fishing conditions (e.g., 
presence or absence of bottom debris, jellyfish, bycatch, seagrasses, 
etc.).
    Tongue means any piece of webbing along the top, center, leading 
edge of a trawl, whether lying behind or ahead of the headrope, to which 
a towing bridle can be attached for purposes of pulling the trawl net 
and/or adjusting the shape of the trawl.
    Transportation means to ship, convey, carry or transport by any 
means whatever, and deliver or receive for such shipment, conveyance, 
carriage, or transportation.
    Triple-wing trawl means a trawl with a tongue on the top, center, 
leading edge of the trawl and an additional tongue along the bottom, 
center, leading edge of the trawl.
    Two-seam trawl means a design of shrimp trawl in which the main body 
of the trawl is formed from a top and a bottom panel of webbing that are 
directly attached to each other down the sides of the trawl.
    Underway with respect to a vessel, means that the vessel is not at 
anchor, or made fast to the shore, or aground.
    Unforeseen circumstances means changes in circumstances affecting a 
species or geographic area covered by a conservation plan that could not 
reasonably have been anticipated by plan developers and NMFS at the time 
of the conservation plan's negotiation and development, and that result 
in a substantial and adverse change in the status of the covered 
species.
    Vessel means a vehicle used, or capable of being used, as a means of 
transportation on water which includes every description of watercraft, 
including nondisplacement craft and seaplanes.
    Vessel restricted in her ability to maneuver has the meaning 
specified for this term at 33 U.S.C. 2003(g).
    Wildlife means any member of the animal kingdom, including without 
limitation any mammal, fish, bird (including any migratory, 
nonmigratory, or endangered bird for which protection is also afforded 
by treaty or other international agreement), amphibian, reptile, 
mollusk, crustacean, arthropod or other invertebrate, and includes any 
part, product, egg, or offspring thereof, or the dead body or parts 
thereof.
    Wing net (butterfly trawl) means a trawl that is fished along the 
side of the vessel and that is held open by a four-sided, rigid frame 
attached to the outrigger of the vessel.

[64 FR 14054, Mar. 23, 1999, as amended at 64 FR 60731, Nov. 8, 1999; 67 
FR 13101, Mar. 21, 2002; 67 FR 41203, June 17, 2002; 67 FR 71899, Dec. 
3, 2002; 68 FR 8467, Feb. 21, 2003; 68 FR 17562, Apr. 10, 2003; 69 FR 
25011, May 5, 2004; 70 FR 1832, Jan. 11, 2005; 71 FR 36032, June 23, 
2006; 71 FR 50372, Aug. 25, 2006]

    Effective Date Note: At 74 FR 46933, Sept. 14, 2009, Sec. 222.102 
was amended by adding the definition of ``Diamonds'' and ``Sweep'', 
effective October 14, 2009. For the convenience of the user, the added 
text is set forth as follows:



Sec. 222.102  Definitions.

                                * * * * *

    Diamonds, with respect to dredge or dredge gear as defined in this 
section, means the triangular shaped portions of the ring bag on the 
``dredge bottom'' as defined in 50 CFR 648.2.

                                * * * * *

[[Page 209]]

    Sweep, with respect to dredge or dredge gear as defined in this 
section, means a chain extending, usually in an arc, from one end of the 
dredge frame to the other to which the ring bag, including the diamonds, 
is attached. The sweep forms the edge of the opening of the dredge bag.

                                * * * * *



Sec. 222.103  Federal/state cooperation in the conservation of endangered and 

threatened species.

    (a) Application for and renewal of cooperative agreements. (1) The 
Assistant Administrator may enter into a Cooperative Agreement with any 
state that establishes and maintains an active and adequate program for 
the conservation of resident species listed as endangered or threatened. 
In order for a state program to be deemed an adequate and active 
program, the Assistant Administrator must find, and annually reconfirm 
that the criteria of either sections 6(c)(1) (A) through (E) or sections 
6(c)(1) (i) and (ii) of the Act have been satisfied.
    (2) Following receipt of an application by a state for a Cooperative 
Agreement with a copy of a proposed state program, and a determination 
by the Assistant Administrator that the state program is adequate and 
active, the Assistant Administrator shall enter into an Agreement with 
the state.
    (3) The Cooperative Agreement, as well as the Assistant 
Administrator's finding upon which it is based, must be reconfirmed 
annually to ensure that it reflects new laws, species lists, rules or 
regulations, and programs and to demonstrate that it is still adequate 
and active.
    (b) Allocation and availability of funds. (1) The Assistant 
Administrator shall allocate funds, appropriated for the purpose of 
carrying out section 6 of the Act, to various states using the following 
as the basis for the determination:
    (i) The international commitments of the United States to protect 
endangered or threatened species;
    (ii) The readiness of a state to proceed with a conservation program 
consistent with the objectives and purposes of the Act;
    (iii) The number of federally listed endangered and threatened 
species within a state;
    (iv) The potential for restoring endangered and threatened species 
within a state; and
    (v) The relative urgency to initiate a program to restore and 
protect an endangered or threatened species in terms of survival of the 
species.
    (2) Funds allocated to a state are available for obligation during 
the fiscal year for which they are allocated and until the close of the 
succeeding fiscal year. Obligation of allocated funds occurs when an 
award or contract is signed by the Assistant Administrator.
    (c) Financial assistance and payments. (1) A state must enter into a 
Cooperative Agreement before financial assistance is approved by the 
Assistant Administrator for endangered or threatened species projects. 
Specifically, the Agreement must contain the actions that are to be 
taken by the Assistant Administrator and/or by the state, the benefits 
to listed species expected to be derived from these actions, and the 
estimated cost of these actions.
    (2) Subsequent to such Agreement, the Assistant Administrator may 
further agree with a state to provide financial assistance in the 
development and implementation of acceptable projects for the 
conservation of endangered and threatened species. Documents to provide 
financial assistance will consist of an application for Federal 
assistance and an award or a contract. The availability of Federal funds 
shall be contingent upon the continued existence of the Cooperative 
Agreement and compliance with all applicable Federal regulations for 
grant administration and cost accounting principles.
    (3)(i) The payment of the Federal share of costs incurred when 
conducting activities included under a contract or award shall not 
exceed 75 percent of the program costs as stated in the agreement. 
However, the Federal share may be increased to 90 percent when two or 
more states having a common interest in one or more endangered or 
threatened resident species, the conservation of which may be enhanced 
by cooperation of such states,

[[Page 210]]

jointly enter into an agreement with the Assistant Administrator.
    (ii) The state share of program costs may be in the form of cash or 
in-kind contributions, including real property, subject to applicable 
Federal regulations.
    (4) Payments of funds, including payment of such preliminary costs 
and expenses as may be incurred in connection with projects, shall not 
be made unless all necessary or required documents are first submitted 
to and approved by the Assistant Administrator. Payments shall only be 
made for expenditures reported and certified by the state agency. 
Payments shall be made only to the state office or official designated 
by the state agency and authorized under the laws of the state to 
receive public funds for the state.



Subpart B_Certificates of Exemption for Pre-Act Endangered Species Parts



Sec. 222.201  General requirements.

    (a) The Assistant Administrator may exempt any pre-Act endangered 
species part from the prohibitions of sections 9(a)(1)(A), 9(a)(1)(E), 
or 9(a)(1)(F) of the Act.
    (1) No person shall engage in any activities identified in such 
sections of the Act that involve any pre-Act endangered species part 
without a valid Certificate of Exemption issued pursuant to this subpart 
B.
    (2) No person may export, deliver, receive, carry, transport or ship 
in interstate or foreign commerce in the course of a commercial 
activity; or sell or offer for sale in interstate or foreign commerce 
any pre-Act finished scrimshaw product unless that person has been 
issued a valid Certificate of Exemption and the product or the raw 
material for such product was held by such certificate holder on October 
13, 1982.
    (3) Any person engaged in activities otherwise prohibited under the 
Act or regulations shall bear the burden of proving that the exemption 
or certificate is applicable, was granted, and was valid and in force at 
the time of the otherwise prohibited activity.
    (b) Certificates of Exemption issued under this subpart are no 
longer available to new applicants. However, the Assistant Administrator 
may renew or modify existing Certificates of Exemptions as authorized by 
the provisions set forth in this subpart.
    (c) Any person granted a Certificate of Exemption, including a 
renewal, under this subpart, upon a sale of any exempted pre-Act 
endangered species part, must provide the purchaser in writing with a 
description (including full identification number) of the part sold and 
must inform the purchaser in writing of the purchaser's obligation under 
paragraph (b) of this section, including the address given in the 
certificate to which the purchaser's report is to be sent.
    (d) Any purchaser of pre-Act endangered species parts included in a 
valid Certificate of Exemption, unless an ultimate user, within 30 days 
after the receipt of such parts, must submit a written report to the 
address given in the certificate. The report must specify the quantity 
of such parts or products received, the name and address of the seller, 
a copy of the invoice or other document showing the serial numbers, 
weight, and descriptions of the parts or products received, the date on 
which such parts or products were received, and the intended use of such 
parts by the purchaser. The term ``ultimate user'', for purposes of this 
paragraph, means any person who acquired such endangered species part or 
product for his or her own consumption or for other personal use 
(including gifts) and not for resale.



Sec. 222.202  Certificate renewal.

    (a) Any person to whom a Certificate of Exemption has been issued by 
the National Marine Fisheries Service may apply to the Assistant 
Administrator for renewal of such certificate. Any person holding a 
valid Certificate of Exemption which was renewed after October 13, 1982, 
and was in effect on March 31, 1988, may apply to the Secretary for one 
renewal for a period not to exceed 5 years.
    (b) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of paragraph 
(c) of this

[[Page 211]]

section. At least 15 days should be allowed for processing. When an 
application for a renewal has been received and deemed sufficient, the 
Assistant Administrator shall issue a Certificate of Renewal to the 
applicant as soon as practicable.
    (c) The following information will be used as the basis for 
determining whether an application for renewal of a Certificate of 
Exemption is complete:
    (1) Title: Application for Renewal of Certificate of Exemption.
    (2) The date of application.
    (3) The identity of the applicant, including complete name, original 
Certificate of Exemption number, current address, and telephone number. 
If the applicant is a corporation, partnership, or association, set 
forth the details.
    (4) The period of time for which a renewal of the Certificate of 
Exemption is requested. However, no renewal of Certificate of Exemption, 
or right claimed thereunder, shall be effective after the close of the 
5-year period beginning on the date of the expiration of the previous 
renewal of the certificate of exemption.
    (5)(i) A complete and detailed updated inventory of all pre-Act 
endangered species parts for which the applicant seeks exemption. Each 
item on the inventory must be identified by the following information: A 
unique serial number; the weight of the item to the nearest whole gram; 
and a detailed description sufficient to permit ready identification of 
the item. Small lots, not exceeding five pounds (2,270 grams), of scraps 
or raw material, which may include or consist of one or more whole raw 
whale teeth, may be identified by a single serial number and total 
weight. All finished scrimshaw items subsequently made from a given lot 
of scrap may be identified by the lot serial number plus additional 
digits to signify the piece number of the individual finished item. 
Identification numbers will be in the following format: 00-000000-0000. 
The first two digits will be the last two digits of the appropriate 
certificate of exemption number; the next six digits, the serial number 
of the individual piece or lot of scrap or raw material; and the last 
four digits, where applicable, the piece number of an item made from a 
lot of scrap or raw material. The serial numbers for each certificate 
holder's inventory must begin with 000001, and piece numbers, where 
applicable, must begin with 0001 for each separate lot.
    (ii) Identification numbers may be affixed to inventory items by any 
means, including, but not limited to, etching the number into the item, 
attaching a label or tag bearing the number to the item, or sealing the 
item in a plastic bag, wrapper or other container bearing the number. 
The number must remain affixed to the item until the item is sold to an 
ultimate user, as defined in Sec. 222.201(d).
    (iii) No renewals will be issued for scrimshaw products in excess of 
any quantities declared in the original application for a Certificate of 
Exemption.
    (6) 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 a renewal of my Certificate of Exemption 
under the Endangered Species Act, as amended, and the Department of 
Commerce regulations issued thereunder, and that any false statement may 
subject me to the criminal penalties of 18 U.S.C. 1001, or to the 
penalties under the Act.
    (7) Signature of the applicant.
    (d) Upon receipt of an incomplete or improperly executed application 
for renewal, the applicant shall be notified of the deficiency in the 
application for renewal. If the application for renewal is not corrected 
and received by the Assistant Administrator within 30 days following the 
date of receipt of notification, the application for renewal shall be 
considered abandoned.



Sec. 222.203  Modification, amendment, suspension, and revocation of 

certificates.

    (a) When circumstances have changed so that an applicant or 
certificate holder desires to have any material, term, or condition of 
the application or certificate modified, the applicant or certificate 
holder must submit in writing full justification and supporting 
information in conformance with the provisions of this part.

[[Page 212]]

    (b) All certificates are issued subject to the condition that the 
Assistant Administrator reserves the right to amend the provisions of a 
Certificate of Exemption for just cause at any time. Such amendments 
take effect on the date of notification, unless otherwise specified.
    (c) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a condition of the certificate 
may subject the certificate holder to penalties provided in the Act and 
to suspension, revocation, or modification of the Certificate of 
Exemption, as provided in subpart D of 15 CFR part 904.



Sec. 222.204  Administration of certificates.

    (a) The Certificate of Exemption covers the business or activity 
specified in the Certificate of Exemption at the address described 
therein. No Certificate of Exemption is required to cover a separate 
warehouse facility used by the certificate holder solely for storage of 
pre-Act endangered species parts, if the records required by this 
subpart are maintained at the address specified in the Certificate of 
Exemption served by the warehouse or storage facility.
    (b) Certificates of Exemption issued under this subpart are not 
transferable. However, in the event of the lease, sale, or other 
transfer of the operations or activity authorized by the Certificate of 
Exemption, the successor is not required to obtain a new Certificate of 
Exemption prior to commencing such operations or activity. In such case, 
the successor will be treated as a purchaser and must comply with the 
record and reporting requirements set forth in Sec. 222.201(d).
    (c) The Certificate of Exemption holder must notify the Assistant 
Administrator, in writing, of any change in address, in trade name of 
the business, or in activity specified in the certificate. The Assistant 
Administrator must be notified within 10 days of a change of address, 
and within 30 days of a change in trade name. The certificate with the 
change of address or in trade name must be endorsed by the Assistant 
Administrator, who shall provide an amended certificate to the person to 
whom it was issued. A certificate holder who seeks amendment of a 
certificate may continue all authorized activities while awaiting action 
by the Assistant Administrator.
    (d) A Certificate of Exemption issued under this subpart confers no 
right or privilege to conduct a business or an activity contrary to 
state or other law. Similarly, compliance with the provisions of any 
state or other law affords no immunity under any Federal laws or 
regulations of any other Federal agency.
    (e) Any person authorized to enforce the Act may enter the premises 
of any Certificate of Exemption holder or of any purchaser during 
business hours, including places of storage, for the purpose of 
inspecting or of examining any records or documents and any endangered 
species parts.
    (f) The records pertaining to pre-Act endangered species parts 
prescribed by this subpart shall be in permanent form and shall be 
retained at the address shown on the Certificate of Exemption or at the 
principal address of a purchaser in the manner prescribed by this 
subpart.
    (g)(1) Holders of Certificates of Exemption must maintain records of 
all pre-Act endangered species parts they receive, sell, transfer, 
distribute or dispose of otherwise. Purchasers of pre-Act endangered 
species parts, unless ultimate users, as defined in Sec. 222.201(d), 
must similarly maintain records of all such parts or products they 
receive.
    (2) Such records referred to in paragraph (g)(1) of this section may 
consist of invoices or other commercial records, which must be filed in 
an orderly manner separate from other commercial records maintained and 
be readily available for inspection. Such records must show the name and 
address of the purchaser, seller, or other transferor; show the type, 
quantity, and identity of the part or product; show the date of such 
sale or transfer; and be retained, in accordance with the requirements 
of this subpart, for a period of not less than 3 years following the 
date of sale or transfer. Each pre-Act endangered species part will be 
identified by its number on the updated inventory required to renew a 
Certificate of Exemption.

[[Page 213]]

    (i) Each Certificate of Exemption holder must submit a quarterly 
report (to the address given in the certificate) containing all record 
information required by paragraph (g)(2) of this section, on all 
transfers of pre-Act endangered species parts made in the previous 
calendar quarter, or such other record information the Assistant 
Administrator may specify from time to time.
    (ii) Quarterly reports are due on January 15, April 15, July 15, and 
October 15.
    (3) The Assistant Administrator may authorize the record information 
to be submitted in a manner other than that prescribed in paragraph 
(g)(2) of this section when the record holder demonstrates that an 
alternate method of reporting is reasonably necessary and will not 
hinder the effective administration or enforcement of this subpart.



Sec. 222.205  Import and export requirements.

    (a) Any fish and wildlife subject to the jurisdiction of the 
National Marine Fisheries Service and is intended for importation into 
or exportation from the United States, shall not be imported or exported 
except at a port(s) designated by the Secretary of the Interior. 
Shellfish and fishery products that are neither endangered nor 
threatened species and that are imported for purposes of human or animal 
consumption or taken in waters under the jurisdiction of the United 
States or on the high seas for recreational purposes are excluded from 
this requirement. The Secretary of the Interior may permit the 
importation or exportation at nondesignated ports in the interest of the 
health or safety of the species for other reasons if the Secretary deems 
it appropriate and consistent with the purpose of facilitating 
enforcement of the Act and reducing the costs thereof. Importers and 
exporters are advised to see 50 CFR part 14 for importation and 
exportation requirements and information.
    (b) No pre-Act endangered species part shall be imported into the 
United States. A Certificate of Exemption issued in accordance with the 
provisions of this subpart confers no right or privilege to import into 
the United States any such part.
    (c)(1) Any person exporting from the United States any pre-Act 
endangered species part must possess a valid Certificate of Exemption 
issued in accordance with the provisions of this subpart. In addition, 
the exporter must provide to the Assistant Administrator, in writing, 
not less than 10 days prior to shipment, the following information: The 
name and address of the foreign consignee, the intended port of 
exportation, and a complete description of the parts to be exported. No 
shipment may be made until these requirements are met by the exporter.
    (2) The exporter must send a copy of the Certificate of Exemption, 
and any endorsements thereto, to the District Director of Customs at the 
port of exportation, which must precede or accompany the shipment in 
order to permit the appropriate inspection prior to lading. Upon 
receipt, the District Director may order such inspection, as deemed 
necessary; the District will clear the merchandise for export, prior to 
the lading of the merchandise. If they are satisfied that the shipment 
is proper and complies with the information contained in the certificate 
and any endorsement thereto. The certificate, and any endorsements, will 
be forwarded to the Chief of the Office of Enforcement for NMFS.
    (3) No pre-Act endangered species part in compliance with the 
requirements of this subpart may be exported except at a port or ports 
designated by the Secretary of the Interior, pursuant to Sec. 222.103.
    (4) Notwithstanding any provision of this subpart, it shall not be 
required that the Assistant Administrator authorizes the transportation 
in interstate or foreign commerce of pre-Act endangered species parts.

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised, effective Mar. 23, 1999, with the exception of Sec. 222.205, 
paragraphs (c)(1) and (2), which contain information collection and 
recordkeeping requirements and will not become effective until approval 
has been given by the Office of Management and Budget.

[[Page 214]]



                   Subpart C_General Permit Procedures



Sec. 222.301  General requirements.

    (a)(1) The regulations in this subpart C provide uniform rules and 
procedures for application, issuance, renewal, conditions, and general 
administration of permits issuable pursuant to parts 222, 223, and 224 
of this chapter. While this section provides generic rules and 
procedures applicable to all permits, other sections may provide more 
specific rules and procedures with respect to certain types of permits. 
In such cases, the requirements in all applicable sections must be 
satisfied.
    (2) Notwithstanding paragraph (a)(1) of this section, the Assistant 
Administrator may approve variations from the requirements of parts 222, 
223, and 224 of this chapter when the Assistant Administrator finds that 
an emergency exists and that the proposed variations will not hinder 
effective administration of those parts and will not be unlawful. Other 
sections within parts 222, 223, and 224 of this chapter may allow for a 
waiver or variation of specific requirements for emergency situations, 
upon certain conditions. In such cases, those conditions must be 
satisfied in order for the waiver or variation to be lawful.
    (b) No person shall take, import, export or engage in any other 
prohibited activity involving any species of fish or wildlife under the 
jurisdiction of the Secretary of Commerce that has been determined to be 
endangered under the Act, or that has been determined to be threatened 
and for which the prohibitions of section 9(a)(1) of the Act have been 
applied by regulation, without a valid permit issued pursuant to these 
regulations. The permit shall entitle the person to whom it is issued to 
engage in the activity specified in the permit, subject to the 
limitations of the Act and the regulations in parts 222, 223, and 224 of 
this chapter, for the period stated on the permit, unless sooner 
modified, suspended or revoked.
    (c) Each person intending to engage in an activity for which a 
permit is required by parts 222, 223, and 224 of this chapter or by the 
Act shall, before commencing such activity, obtain a valid permit 
authorizing such activity. Any person who desires to obtain permit 
privileges authorized by parts 222, 223, and 224 of this chapter must 
apply for such permit in accordance with the requirements of these 
sections. If the information required for each specific, permitted 
activity is included, one application may be accepted for all permits 
required, and a single permit may be issued.
    (d)(1) Any permit issued under these regulations must be in the 
possession of the person to whom it is issued (or of an agent of such 
person) while any animal subject to the permit is in the possession of 
such person or agent. Specifically, a person or his/her agent must be in 
possession of a permit during the time of the authorized taking, 
importation, exportation, or of any other act and during the period of 
any transit incident to such taking, importation, exportation, or to any 
other act.
    (2) A duplicate copy of the issued permit must be physically 
attached to the tank, container, package, enclosure, or other means of 
containment, in which the animal is placed for purposes of storage, 
transit, supervision, or care.
    (e) The authorizations on the face of a permit setting forth 
specific times, dates, places, methods of taking, numbers and kinds of 
fish or wildlife, location of activity, authorize certain circumscribed 
transactions, or otherwise permit a specifically limited matter, are to 
be strictly construed and shall not be interpreted to permit similar or 
related matters outside the scope of strict construction.
    (f) Permits shall not be altered, erased, or mutilated, and any 
permit which has been altered, erased, or mutilated shall immediately 
become invalid.
    (g) Any permit issued under parts 222, 223, and 224 of this chapter 
shall be displayed for inspection, upon request, to an authorized 
officer, or to any other person relying upon its existence.
    (h) Permittees may be required to file reports of the activities 
conducted under the permit. Any such reports shall be filed not later 
than March 31 for the preceding calendar year ending December 31, or any 
portion thereof, during which a permit was in force, unless the 
regulations of parts 222, 223, or

[[Page 215]]

224 of this chapter or the provisions of the permit set forth other 
reporting requirements.
    (i) From the date of issuance of the permit, the permittee shall 
maintain complete and accurate records of any taking, possession, 
transportation, sale, purchase, barter, exportation, or importation of 
fish or wildlife pursuant to such permit. Such records shall be kept 
current and shall include the names and addresses of persons with whom 
any fish or wildlife has been purchased, sold, bartered, or otherwise 
transferred, and the date of such transaction, and such other 
information as may be required or appropriate. Such records, unless 
otherwise specified, shall be entered in books, legibly written in the 
English language. Such records shall be retained for 5 years from the 
date of issuance of the permit.
    (j) Any person holding a permit pursuant to parts 222, 223, and 224 
of this chapter shall allow the Assistant Administrator to enter the 
permit holder's premises at any reasonable hour to inspect any fish or 
wildlife held or to inspect, audit, or copy any permits, books, or 
records required to be kept by these regulations or by the Act. Such 
person shall display any permit issued pursuant to these regulations or 
to the Act upon request by an authorized officer or by any other person 
relying on its existence.



Sec. 222.302  Procedure for obtaining permits.

    (a) Applications must be submitted to the Assistant Administrator, 
by letter containing all necessary information, attachments, 
certification, and signature, as specified by the regulations in parts 
222, 223, and 224 of this chapter, or by the Act. In no case, other than 
for emergencies pursuant to Sec. 222.301(a)(2), will applications be 
accepted either orally or by telephone.
    (b) Applications must be received by the Assistant Administrator at 
least 90 calendar days prior to the date on which the applicant desires 
to have the permit made effective, unless otherwise specified in the 
regulations or guidelines pertaining to a particular permit. The 
National Marine Fisheries Service will attempt to process applications 
deemed sufficient in the shortest possible time, but does not guarantee 
that the permit will be issued 90 days after notice of receipt of the 
application is published in the Federal Register.
    (c)(1) Upon receipt of an insufficiently or improperly executed 
application, the applicant shall be notified of the deficiency in the 
application. If the applicant fails to supply the deficient information 
or otherwise fails to correct the deficiency within 60 days following 
the date of notification, the application shall be considered abandoned.
    (2) The sufficiency of the application shall be determined by the 
Assistant Administrator in accordance with the requirements of this 
part. The Assistant Administrator, however, may waive any requirement 
for information or require any elaboration or further information deemed 
necessary.



Sec. 222.303  Issuance of permits.

    (a)(1) No permit may be issued prior to the receipt of a written 
application unless an emergency pursuant to Sec. 222.301(a)(2) exists, 
and a written variation from the requirements is recorded by the 
National Marine Fisheries Service.
    (2) No representation of an employee or agent of the United States 
shall be construed as a permit unless it meets the requirements of a 
permit defined in Sec. 222.102.
    (3) Each permit shall bear a serial number. Upon renewal, such a 
number may be reassigned to the permittee to whom issued so long as the 
permittee maintains continuity of renewal.
    (b) When an application for a permit received by the Assistant 
Administrator is deemed sufficient, the Assistant Administrator shall, 
as soon as practicable, publish a notice in the Federal Register. 
Information received by the Assistant Administrator as a part of the 
application shall be available to the public as a matter of public 
record at every stage of the proceeding. An interested party, within 30 
days after the date of publication of such notice, may submit to the 
Assistant Administrator written data, views, or arguments with respect 
to the taking, importation, or to other action proposed in the 
application, and may

[[Page 216]]

request a hearing in connection with the action to be taken thereon.
    (c) If a request for a hearing is made within the 30-day period 
referred to in paragraph (b) of this section, or if the Assistant 
Administrator determines that a hearing would otherwise be advisable, 
the Assistant Administrator may, within 60 days after the date of 
publication of the notice referred to in paragraph (b) of this section, 
afford to such requesting party or parties an opportunity for a hearing. 
Such hearing shall also be open to participation by any interested 
members of the public. Notice of the date, time, and place of such 
hearing shall be published in the Federal Register not less than 15 days 
in advance of such hearing. Any interested person may appear at the 
hearing in person or through a representative and may submit any 
relevant material, data, views, comments, arguments, or exhibits. A 
summary record of the hearing shall be kept.
    (d) Except as provided in subpart D to 15 CFR part 904, as soon as 
practicable but not later than 30 days after the close of the hearing. 
If no hearing is held, as soon as practicable but not later than 30 days 
from the publication of the notice in the Federal Register, the 
Assistant Administrator shall issue or deny issuance of the permit. 
Notice of the decision of the Assistant Administrator shall be published 
in the Federal Register within 10 days after the date of the issuance or 
denial and indicate where copies of the permit, if issued, may be 
obtained.
    (e)(1) The Assistant Administrator shall issue the permit unless:
    (i) Denial of the permit has been made pursuant to subpart D to 15 
CFR part 904;
    (ii) The applicant has failed to disclose material or information 
required, or has made false statements as to any material fact, in 
connection with the application;
    (iii) The applicant has failed to demonstrate a valid justification 
for the permit or a showing of responsibility;
    (iv) The authorization requested potentially threatens a fish or 
wildlife population; or
    (v) The Assistant Administrator finds through further inquiry or 
investigation, or otherwise, that the applicant is not qualified.
    (2) The applicant shall be notified in writing of the denial of any 
permit request, and the reasons thereof. If authorized in the notice of 
denial, the applicant may submit further information or reasons why the 
permit should not be denied. Such further information shall not be 
considered a new application. The final action by the Assistant 
Administrator shall be considered the final administrative decision of 
the Department of Commerce.
    (f) If a permit is issued under Sec. 222.308, the Assistant 
Administrator shall publish notice thereof in the Federal Register, 
including the Assistant Administrator's finding that such permit--
    (1) Was applied for in good faith;
    (2) Will not operate to the disadvantage of such endangered species; 
and
    (3) Will be consistent with the purposes and policy set forth in 
section 2 of the Act.
    (g) The Assistant Administrator may waive the 30-day period in an 
emergency situation where the health or life of an endangered animal is 
threatened and no reasonable alternative is available to the applicant. 
Notice of any such waiver shall be published by the Assistant 
Administrator in the Federal Register within 10 days following the 
issuance of the permit.



Sec. 222.304  Renewal of permits.

    When the permit is renewable and a permittee intends to continue the 
activity described in the permit during any portion of the year ensuing 
its expiration, the permittee shall, unless otherwise notified in 
writing by the Assistant Administrator, file a request for permit 
renewal, together with a certified statement, verifying that the 
information in the original application is still currently correct. If 
the information is incorrect the permittee shall file a statement of all 
changes in the original application, accompanied by any required fee at 
least 30 days prior to the expiration of the permit. Any person holding 
a valid renewable permit, who has complied with the foregoing provision 
of this section, may

[[Page 217]]

continue such activities as were authorized by the expired permit until 
the renewal application is acted upon.



Sec. 222.305  Rights of succession and transfer of permits.

    (a)(1) Except as otherwise provided in this section, permits issued 
pursuant to parts 222, 223, and 224 of this chapter are not transferable 
or assignable. In the event that a permit authorizes certain business 
activities in connection with a business or commercial enterprise, which 
is then subject to any subsequent lease, sale or transfer, the successor 
to that enterprise must obtain a permit prior to continuing the 
permitted activity, with the exceptions provided in paragraphs (a)(2) 
and (a)(3) of this section.
    (2) Certain persons, other than the permittee, are granted the right 
to carry on a permitted activity for the remainder of the term of a 
current permit, provided that they furnish the permit to the issuing 
officer for endorsement within 90 days from the date the successor 
begins to carry on the activity. Such persons are the following:
    (i) The surviving spouse, child, executor, administrator, or other 
legal representative of a deceased permittee, and
    (ii) The receiver or trustee in bankruptcy or a court designated 
assignee for the benefit of creditors.
    (3) Incidental take permits issued under Sec. 222.307, and 
enhancement permits issued under Sec. 222.308, as part of a Safe Harbor 
Agreement with Assurances or Candidate Conservation Agreement with 
Assurances, may be transferred in whole or in part through a joint 
submission by the permittee and the proposed transferee, or in the case 
of a deceased permittee, the deceased permittee's legal representative 
and the proposed transferee, provided NMFS determines in writing that:
    (i) The proposed transferee meets all of the qualifications under 
parts 222, 223, or 224 (as applicable) for holding a permit;
    (ii) The proposed transferee has provided adequate written 
assurances that it will provide sufficient funding for the conservation 
plan or other agreement or plan associated with the permit and will 
implement the relevant terms and conditions of the permit, including any 
outstanding minimization and mitigation requirements; and
    (iii) The proposed transferee has provided such other information as 
NMFS determines is relevant to process the transfer.
    (b) Except as otherwise stated on the face of the permit, any person 
who is under the direct control of the permittee, or who is employed by 
or under contract to the permittee for purposes authorized by the 
permit, may carry out the activity authorized by the permit.

[64 FR 14054, Mar. 23, 1999, as amended at 67 FR 57973, Sept. 13, 2002]

    Effective Date Note: At 64 FR 14054, Mar. 23, 1999, part 222 was 
revised, effective Mar. 23, 1999, with the exception of Sec. 222.305, 
paragraph (a), which contains information collection and recordkeeping 
requirements and will not become effective until approval has been given 
by the Office of Management and Budget.



Sec. 222.306  Modification, amendment, suspension, cancellation, and 

revocation of permits.

    (a) When circumstances have changed so that an applicant or a 
permittee desires to have any term or condition of the application or 
permit modified, the applicant or permittee must submit in writing full 
justification and supporting information in conformance with the 
provisions of this part and the part under which the permit has been 
issued or requested. Such applications for modification are subject to 
the same issuance criteria as original applications.
    (b) Notwithstanding the requirements of paragraph (a) of this 
section, a permittee may change the mailing address or trade name under 
which business is conducted without obtaining a new permit or being 
subject to the same issuance criteria as original permits. The permittee 
must notify the Assistant Administrator, in writing within 30 days, of 
any change in address or of any change in the trade name for the 
business or activity specified in the permit. The permit with the change 
of address or in trade name must be endorsed by the Assistant 
Administrator, who shall provide an

[[Page 218]]

amended permit to the person to whom it was issued.
    (c) All permits are issued subject to the condition that the 
National Marine Fisheries Service reserves the right to amend the 
provisions of a permit for just cause at any time during its term. Such 
amendments take effect on the date of notification, unless otherwise 
specified.
    (d) When any permittee discontinues the permitted activity, the 
permittee shall, within 30 days thereof, mail the permit and a request 
for cancellation to the issuing officer, and the permit shall be deemed 
void upon receipt. No refund of any part of an amount paid as a permit 
fee shall be made when the operations of the permittee are, for any 
reason, discontinued during the tenure of an issued permit.
    (e) Any violation of the applicable provisions of parts 222, 223, or 
224 of this chapter, or of the Act, or of a term or condition of the 
permit may subject the permittee to both the penalties provided in the 
Act and suspension, revocation, or amendment of the permit, as provided 
in subpart D to 15 CFR part 904.



Sec. 222.307  Permits for incidental taking of species.

    (a) Scope. (1) The Assistant Administrator may issue permits to take 
endangered and threatened species incidentally to an otherwise lawful 
activity under section 10(a)(1)(B) of the Act. The regulations in this 
section apply to all endangered species, and those threatened species 
for which the prohibitions of section 9(a)(1) of the Act, under the 
jurisdiction of the Secretary of Commerce, apply.
    (2) If the applicant represents an individual or a single entity, 
such as a corporation, the Assistant Administrator will issue an 
individual incidental take permit. If the applicant represents a group 
or organization whose members conduct the same or a similar activity in 
the same geographical area with similar impacts on listed species for 
which a permit is required, the Assistant Administrator will issue a 
general incidental take permit. To be covered by a general incidental 
take permit, each individual conducting the activity must have a 
certificate of inclusion issued under paragraph (f) of this section.
    (b) Permit application procedures. Applications should be sent to 
the Assistant Administrator. The Assistant Administrator shall determine 
the sufficiency of the application in accordance with the requirements 
of this section. At least 120 days should be allowed for processing. 
Each application must be signed and dated and must include the 
following:
    (1) The type of application, either:
    (i) Application for an Individual Incidental Take Permit under the 
Act; or
    (ii) Application for a General Incidental Take Permit under the Act;
    (2) The name, address, and telephone number of the applicant. If the 
applicant is a partnership or a corporate entity or is representing a 
group or an organization, the applicable details;
    (3) The species or stocks, by common and scientific name, and a 
description of the status, distribution, seasonal distribution, habitat 
needs, feeding habits and other biological requirements of the affected 
species or stocks;
    (4) A detailed description of the proposed activity, including the 
anticipated dates, duration, and specific location. If the request is 
for a general incidental take permit, an estimate of the total level of 
activity expected to be conducted;
    (5) A conservation plan, based on the best scientific and commercial 
data available, which specifies the following:
    (i) The anticipated impact (i.e., amount, extent, and type of 
anticipated taking) of the proposed activity on the species or stocks;
    (ii) The anticipated impact of the proposed activity on the habitat 
of the species or stocks and the likelihood of restoration of the 
affected habitat;
    (iii) The steps (specialized equipment, methods of conducting 
activities, or other means) that will be taken to monitor, minimize, and 
mitigate such impacts, and the funding available to implement such 
measures;
    (iv) The alternative actions to such taking that were considered and 
the reasons why those alternatives are not being used; and
    (v) A list of all sources of data used in preparation of the plan, 
including

[[Page 219]]

reference reports, environmental assessments and impact statements, and 
personal communications with recognized experts on the species or 
activity who may have access to data not published in current 
literature.
    (c) Issuance criteria. (1) In determining whether to issue a permit, 
the Assistant Administrator will consider the following:
    (i) The status of the affected species or stocks;
    (ii) The potential severity of direct, indirect, and cumulative 
impacts on the species or stocks and habitat as a result of the proposed 
activity;
    (iii) The availability of effective monitoring techniques;
    (iv) The use of the best available technology for minimizing or 
mitigating impacts; and
    (v) The views of the public, scientists, and other interested 
parties knowledgeable of the species or stocks or other matters related 
to the application.
    (2) To issue the permit, the Assistant Administrator must find 
that--
    (i) The taking will be incidental;
    (ii) The applicant will, to the maximum extent practicable, monitor, 
minimize, and mitigate the impacts of such taking;
    (iii) The taking will not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild;
    (iv) The applicant has amended the conservation plan to include any 
measures (not originally proposed by the applicant) that the Assistant 
Administrator determines are necessary or appropriate; and
    (v) There are adequate assurances that the conservation plan will be 
funded and implemented, including any measures required by the Assistant 
Administrator.
    (d) Permit conditions. In addition to the general conditions set 
forth in this part, every permit issued under this section will contain 
such terms and conditions as the Assistant Administrator deems necessary 
and appropriate, including, but not limited to the following:
    (1) Reporting requirements or rights of inspection for determining 
whether the terms and conditions are being complied with;
    (2) The species and number of animals covered;
    (3) The authorized method of taking;
    (4) The procedures to be used to handle or dispose of any animals 
taken; and
    (5) The payment of an adequate fee to the National Marine Fisheries 
Service to process the application.
    (e) Duration of permits. The duration of permits issued under this 
section will be such as to provide adequate assurances to the permit 
holder to commit funding necessary for the activities authorized by the 
permit, including conservation activities. In determining the duration 
of a permit, the Assistant Administrator will consider the duration of 
the proposed activities, as well as the possible positive and negative 
effects on listed species associated with issuing a permit of the 
proposed duration, including the extent to which the conservation plan 
is likely to enhance the habitat of the endangered species or to 
increase the long-term survivability of the species.
    (f) Certificates of inclusion. (1) Any individual who wishes to 
conduct an activity covered by a general incidental take permit must 
apply to the Assistant Administrator for a Certificate of Inclusion. 
Each application must be signed and dated and must include the 
following:
    (i) The general incidental take permit under which the applicant 
wants coverage;
    (ii) The name, address, and telephone number of the applicant. If 
the applicant is a partnership or a corporate entity, the applicable 
details;
    (iii) A description of the activity the applicant seeks to have 
covered under the general incidental take permit, including the 
anticipated dates, duration, and specific location; and
    (iv) A signed certification that the applicant has read and 
understands the general incidental take permit and the conservation 
plan, will comply with their terms and conditions, and will fund and 
implement applicable measures of the conservation plan.
    (2) To issue a Certificate of Inclusion, the Assistant Administrator 
must find that:

[[Page 220]]

    (i) The applicant will be engaged in the activity covered by the 
general permit, and
    (ii) The applicant has made adequate assurances that the applicable 
measures of the conservation plan will be funded and implemented.
    (g) Assurances provided to permittee in case of changed or 
unforeseen circumstances. The assurances in this paragraph (g) apply 
only to incidental take permits issued in accordance with paragraph (c) 
of this section where the conservation plan is being properly 
implemented, and apply only with respect to species adequately covered 
by the conservation plan. These assurances cannot be provided to Federal 
agencies. This rule does not apply to incidental take permits issued 
prior to March 25, 1998. The assurances provided in incidental take 
permits issued prior to March 25, 1998, remain in effect, and those 
permits will not be revised as a result of this rulemaking.
    (1) Changed circumstances provided for in the plan. If additional 
conservation and mitigation measures are deemed necessary to respond to 
changed circumstances and were provided for in the plan's operating 
conservation program, the permittee will implement the measures 
specified in the plan.
    (2) Changed circumstances not provided for in the plan. If 
additional conservation and mitigation measures are deemed necessary to 
respond to changed circumstances and such measures were not provided for 
in the plan's operating conservation program, NMFS will not require any 
conservation and mitigation measures in addition to those provided for 
in the plan without the consent of the permittee, provided the plan is 
being properly implemented.
    (3) Unforeseen circumstances. (i) In negotiating unforeseen 
circumstances, NMFS will not require the commitment of additional land, 
water, or financial compensation or additional restrictions on the use 
of land, water, or other natural resources beyond the level otherwise 
agreed upon for the species covered by the conservation plan without the 
consent of the permittee.
    (ii) If additional conservation and mitigation measures are deemed 
necessary to respond to unforeseen circumstances, NMFS may require 
additional measures of the permittee where the conservation plan is 
being properly implemented. However, such additional measures are 
limited to modifications within any conserved habitat areas or to the 
conservation plan's operating conservation program for the affected 
species. The original terms of the conservation plan will be maintained 
to the maximum extent possible. Additional conservation and mitigation 
measures will not involve the commitment of additional land, water, or 
financial compensation or additional restrictions on the use of land, 
water, or other natural resources otherwise available for development or 
use under the original terms of the conservation plan without the 
consent of the permittee.
    (iii) NMFS has the burden of demonstrating that unforeseen 
circumstances exist, using the best scientific and commercial data 
available. These findings must be clearly documented and based upon 
reliable technical information regarding the status and habitat 
requirements of the affected species. NMFS will consider, but not be 
limited to, the following factors:
    (A) Size of the current range of the affected species;
    (B) Percentage of range adversely affected by the conservation plan;
    (C) Percentage of range conserved by the conservation plan;
    (D) Ecological significance of that portion of the range affected by 
the conservation plan;
    (E) Level of knowledge about the affected species and the degree of 
specificity of the species' conservation program under the conservation 
plan; and
    (F) Whether failure to adopt additional conservation measures would 
appreciably reduce the likelihood of survival and recovery of the 
affected species in the wild.
    (h) Nothing in this rule will be construed to limit or constrain the 
Assistant Administrator, any Federal, State, local, or Tribal government 
agency, or a private entity, from taking additional actions at his or 
her own expense to protect or conserve a species included in a 
conservation plan.

[[Page 221]]



Sec. 222.308  Permits for scientific purposes or for the enhancement of 

propagation or survival of species.

    (a) Scope. The Assistant Administrator may issue permits for 
scientific purposes or for the enhancement of the propagation or 
survival of the affected endangered or threatened species in accordance 
with the regulations in parts 222, 223, and 224 of this chapter and 
under such terms and conditions as the Assistant Administrator may 
prescribe, authorizing the taking, importation, or other acts otherwise 
prohibited by section 9 of the Act. Within the jurisdication of a State, 
more restrictive state laws or regulations in regard to endangered 
species shall prevail in regard to taking. Proof of compliance with 
applicable state laws will be required before a permit will be issued.
    (b) Application procedures. Any person desiring to obtain such a 
permit may make application therefor to the Assistant Administrator. 
Permits for marine mammals shall be issued in accordance with the 
provisions of part 216, subpart D of this chapter. Permits relating to 
sea turtles may involve the Fish and Wildlife Service, in which case the 
applicant shall follow the procedures set out in Sec. 222.309. The 
following information will be used as the basis for determining whether 
an application is complete and whether a permit for scientific purposes 
or for enhancement of propagation or survival of the affected species 
should be issued by the Assistant Administrator. An application for a 
permit shall provide the following information and such other 
information that the Assistant Administrator may require:
    (1) Title, as applicable, either--
    (i) Application for permit for scientific purposes under the Act; or
    (ii) Application for permit for the enhancement of the propagation 
or survival of the endangered species Under the Act.
    (2) The date of the application.
    (3) The identity of the applicant including complete name, address, 
and telephone number. If the applicant is a partnership or a corporate 
entity, set forth the details. If the endangered species is to be 
utilized by a person other than the applicant, set forth the name of 
that person and such other information as would be required if such 
person were an applicant.
    (4) A description of the purpose of the proposed acts, including the 
following:
    (i) A detailed justification of the need for the endangered species, 
including a discussion of possible alternatives, whether or not under 
the control of the applicant; and
    (ii) A detailed description of how the species will be used.
    (5) A detailed description of the project, or program, in which the 
endangered species is to be used, including the following:
    (i) The period of time over which the project or program will be 
conducted;
    (ii) A list of the names and addresses of the sponsors or 
cooperating institutions and the scientists involved;
    (iii) A copy of the formal research proposal or contract if one has 
been prepared;
    (iv) A statement of whether the proposed project or program has 
broader significance than the individual researcher's goals. For 
example, does the proposed project or program respond directly or 
indirectly to recommendation of any national or international scientific 
body charged with research or management of the endangered species? If 
so, how?; and
    (v) A description of the arrangements, if any, for the disposition 
of any dead specimen or its skeleton or other remains in a museum or 
other institutional collection for the continued benefit to science.
    (6) A description of the endangered species which is the subject of 
the application, including the following:
    (i) A list of each species and the number of each, including the 
common and scientific name, the subspecies (if applicable), population 
group, and range;
    (ii) A physical description of each animal, including the age, size, 
and sex;
    (iii) A list of the probable dates of capture or other taking, 
importation, exportation, and other acts which require a permit for each 
animal and the location of capture or other taking, importation, 
exportation, and other acts which require a permit, as specifically as 
possible;
    (iv) A description of the status of the stock of each species 
related insofar as

[[Page 222]]

possible to the location or area of taking;
    (v) A description of the manner of taking for each animal, including 
the gear to be used;
    (vi) The name and qualifications of the persons or entity which will 
capture or otherwise take the animals; and
    (vii) If the capture or other taking is to be done by a contractor, 
a statement as to whether a qualified member of your staff (include 
name(s) and qualifications) will supervise or observe the capture or 
other taking. Accompanying such statement shall be a copy of the 
proposed contract or a letter from the contractor indicating agreement 
to capture or otherwise take the animals, should a permit be granted.
    (7) A description of the manner of transportation for any live 
animal taken, imported, exported, or shipped in interstate commerce, 
including the following:
    (i) Mode of transportation;
    (ii) Name of transportation company;
    (iii) Length of time in transit for the transfer of the animal(s) 
from the capture site to the holding facility;
    (iv) Length of time in transit for any planned future move or 
transfer of the animals;
    (v) The qualifications of the common carrier or agent used for 
transportation of the animals;
    (vi) A description of the pen, tank, container, cage, cradle, or 
other devices used to hold the animal at both the capture site and 
during transportation;
    (vii) Special care before and during transportation, such as salves, 
antibiotics, moisture; and
    (viii) A statement as to whether the animals will be accompanied by 
a veterinarian or by another similarly qualified person, and the 
qualifications of such person.
    (8) Describe the contemplated care and maintenance of any live 
animals sought, including a complete description of the facilities where 
any such animals will be maintained including:
    (i) The dimensions of the pools or other holding facilities and the 
number, sex, and age of animals by species to be held in each;
    (ii) The water supply, amount, and quality;
    (iii) The diet, amount and type, for all animals;
    (iv) Sanitation practices used;
    (v) Qualifications and experience of the staff;
    (vi) A written certification from a licensed veterinarian or from a 
recognized expert who are knowledgeable on the species (or related 
species) or group covered in the application. The certificate shall 
verify that the veterinarian has personally reviewed the amendments for 
transporting and maintaining the animal(s) and that, in the 
veterinarian's opinion, they are adequate to provide for the well-being 
of the animal; and
    (vii) The availability in the future of a consulting expert or 
veterinarian meeting paragraph requirements of (b)(8)(vi) in this 
section.
    (9) A statement of willingness to participate in a cooperative 
breeding program and maintain or contribute data to a stud book.
    (10) A statement of how the applicant's proposed project or program 
will enhance or benefit the wild population.
    (11) For the 5 years preceding the date of application, the 
applicant shall provide a detailed description of all mortalities 
involving species under the control of or utilized by the applicant and 
are either presently listed as endangered species or are taxonomically 
related within the Order to the species which is the subject of this 
application, including:
    (i) A list of all endangered species and related species that are 
the subject of this application that have been captured, transported, 
maintained, or utilized by the applicant for scientific purposes or for 
the enhancement of propagation or survival of the affected species, and/
or of related species that are captured, transported, maintained, or 
utilized by the applicant for scientific purposes or for enhancement of 
propagation or survival of the affected species;
    (ii) The numbers of mortalities among such animals by species, by 
date, by location of capture, i.e., from which population, and the 
location of such mortalities;

[[Page 223]]

    (iii) The cause(s) of any such mortality; and
    (iv) The steps which have been taken by applicant to avoid or 
decrease any such mortality.
    (12) 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 a permit under the Endangered 
Species Act, as amended, 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 Act.
    (13) The applicant and/or an officer thereof must sign the 
application.
    (14) Assistance in completing this application may be obtained by 
writing Chief, Endangered Species Division, Office of Protected 
Resources, NMFS, 1315 East-West Highway, Silver Spring, MD 20910 or 
calling the Office of Protected Resources at 301-713-1401. Allow at 
least 90 days for processing.
    (c) Issuance criteria. In determining whether to issue a permit for 
scientific purposes or to enhance the propagation or survival of the 
affected endangered species, the Assistant Administrator shall 
specifically consider, among other application criteria, the following:
    (1) Whether the permit was applied for in good faith;
    (2) Whether the permit, if granted and exercised, will not operate 
to the disadvantage of the endangered species;
    (3) Whether the permit would be consistent with the purposes and 
policy set forth in section 2 of the Act;
    (4) Whether the permit would further a bona fide and necessary or 
desirable scientific purpose or enhance the propagation or survival of 
the endangered species, taking into account the benefits anticipated to 
be derived on behalf of the endangered species;
    (5) The status of the population of the requested species and the 
effect of the proposed action on the population, both direct and 
indirect;
    (6) If a live animal is to be taken, transported, or held in 
captivity, the applicant's qualifications for the proper care and 
maintenance of the species and the adequacy of the applicant's 
facilities;
    (7) Whether alternative non-endangered species or population stocks 
can and should be used;
    (8) Whether the animal was born in captivity or was (or will be) 
taken from the wild;
    (9) Provision for disposition of the species if and when the 
applicant's project or program terminates;
    (10) How the applicant's needs, program, and facilities compare and 
relate to proposed and ongoing projects and programs;
    (11) Whether the expertise, facilities, or other resources available 
to the applicant appear adequate to successfully accomplish the 
objectives stated in the application; and
    (12) Opinions or views of scientists or other persons or 
organizations knowledgeable about the species which is the subject of 
the application or of other matters germane to the application.
    (d) Terms and conditions. Permits applied for under this section 
shall contain terms and conditions as the Assistant Administrator may 
deem appropriate, including but not limited to the following:
    (1) The number and kind of species covered;
    (2) The location and manner of taking;
    (3) Port of entry or export;
    (4) The methods of transportation, care, and maintenance to be used 
with live species;
    (5) Any requirements for reports or rights of inspections with 
respect to any activities carried out pursuant to the permit;
    (6) The transferability or assignability of the permit;
    (7) The sale or other disposition of the species, its progeny, or 
the species product; and
    (8) A reasonable fee covering the costs of issuance of such permit, 
including reasonable inspections and an appropriate apportionment of 
overhead and administrative expenses of the Department of Commerce. All 
such fees will be deposited in the Treasury to the credit of the 
appropriation which is current and chargeable for the cost of furnishing 
the service.

[[Page 224]]



Sec. 222.309  Permits for listed species of sea turtles involving the Fish and 

Wildlife Service.

    (a) This section establishes specific procedures for issuance of the 
following permits: scientific purposes or to enhance the propagation or 
survival of endangered or threatened species of sea turtles; zoological 
exhibition or educational purposes for threatened species of sea 
turtles; and permits that requires coordination with the Fish and 
Wildlife Service. The National Marine Fisheries Service maintains 
jurisdiction for such species in the marine environment. The Fish and 
Wildlife Service maintains jurisdiction for such species of sea turtles 
in the land environment.
    (b) For permits relating to any activity in the marine environment 
exclusively, permit applicants and permittees must comply with the 
regulations in parts 222, 223, and 224 of this chapter.
    (c) For permits relating to any activity in the land environment 
exclusively, permit applicants must submit applications to the Wildlife 
Permit Office (WPO) of the U.S. Fish and Wildlife Service in accordance 
with either 50 CFR 17.22(a), if the species is endangered, or 50 CFR 
17.32(a), if the species is threatened.
    (d) For permits relating to any activity in both the land and marine 
environments, applicants must submit applications to the WPO. WPO will 
forward the application to NMFS for review and processing of those 
activities under its jurisdiction. Based on this review and processing, 
WPO will issue either a permit or a letter of denial in accordance with 
its own regulations.
    (e) For permits relating to any activity in a marine environment and 
that also requires a permit under the Convention on International Trade 
in Endangered Species of Wild Fauna and Flora (CITES) (TIAS 8249, July 
1, 1975) (50 CFR part 23), applicants must submit applications to the 
WPO. WPO will forward the application to NMFS for review and processing, 
after which WPO will issue a combination ESA/CITES permit or a letter of 
denial.



Sec. 222.310  Permit authority for designated agents and employees of 

specified Federal and state agencies.

    (a) This section constitutes a programmatic permit, pursuant to 16 
U.S.C. 1539(a)(1)(A), that authorizes activities by agents and employees 
of Federal and state agencies, as described in paragraph (b) of this 
section, to aid stranded endangered sea turtles, and to salvage, collect 
data from, and dispose of, dead carcasses of endangered sea turtles in 
the marine environment. For purposes of this section, 'stranded' means 
endangered sea turtles, in the marine environment, that are alive but 
sick, injured, or entangled.
    (b) If any member of any endangered species of sea turtle is found 
stranded or dead in the marine environment, any agent or employee of the 
National Marine Fisheries Service, the Fish and Wildlife Service, the 
U.S. Coast Guard, or any other Federal land or water management agency, 
or any agent or employee of a state agency responsible for fish and 
wildlife who is designated by his or her agency for such purposes, may, 
when acting in the course of his or her official duties, take such 
endangered sea turtles if such taking is necessary to aid a stranded sea 
turtle, or dispose of or salvage a dead sea turtle, or collect data from 
a dead sea turtle which may be useful for scientific and educational 
purposes. Live turtles will be handled as described in Sec. 
223.206(d)(1). Whenever possible, live sea turtles shall be returned to 
their aquatic environment as soon as possible. The following data 
collection activities for live turtles while they are in the marine 
environment are allowed:
    (1) Turtles may be flipper and passive integrated transponder (PIT) 
tagged, prior to release. Flipper tags would be applied to the trailing 
edge of either the front or rear flippers with standard tagging 
applicators after the tagging area has been cleaned with alcohol or 
iodine solution. PIT tags would be inserted according to best practice, 
approved scientific protocols, after cleaning the insertion site with 
alcohol or iodine solution. Before application of flipper tags or 
insertion of PIT tags, all flippers and the neck/shoulder area will

[[Page 225]]

be examined and scanned for the presence of any pre-existing flipper or 
PIT tags.
    (2) Turtles may also be weighed, measured, and photographed prior to 
release.
    (3) When handling turtles exhibiting fibropapilloma, all equipment 
(tagging equipment, tape measures, etc.) that comes in contact with the 
turtle shall be cleaned with a mild bleach solution.
    (c) Every action shall be reported in writing to the Assistant 
Administrator, or authorized representative, via the agency or 
institution designated by the state to record such events. Reports shall 
contain the following information:
    (1) Name and position of the official or employee involved;
    (2) Description of the sea turtle(s) involved including species and 
condition of the animal;
    (3) When applicable, description of entangling gear, its location on 
the turtle, and the amount of gear left on the turtle at release;
    (4) Method, date and location of disposal of the sea turtle(s), 
including, if applicable, where the sea turtle(s) has been retained in 
captivity; and
    (5) Such other information as the Assistant Administrator, or 
authorized representative, may require.

[70 FR 42509, July 25, 2005]



                     Subpart D_Observer Requirement

    Source: 72 FR 43185, Aug. 3, 2007, unless otherwise noted.



Sec. 222.401  Observer requirement.

    Any United States fishing vessel, either commercial or recreational, 
which operates within the territorial seas or exclusive economic zone of 
the United States or on the high seas, or any fishing vessel that is 
otherwise subject to the jurisdiction of the United States, operating in 
a fishery that is identified through the annual determination process 
specified in Sec. 222.402 must carry aboard a NMFS-approved observer 
upon request by the NMFS Assistant Administrator, in consultation with 
NMFS Regional Administrators and Science Center Directors, as 
appropriate. NMFS and/or interested cooperating entities will pay direct 
costs for the observer. Owners and operators must comply with observer 
safety requirements specified at 50 CFR 600.725 and 50 CFR 600.746 and 
the terms and conditions specified in the written notification.



Sec. 222.402  Annual determination of fisheries to be observed; notice and 

comment.

    (a) The Assistant Administrator, in consultation with Regional 
Administrators and Science Center Directors, will make an annual 
determination identifying which fisheries the agency intends to observe. 
This determination will be based on the extent to which:
    (1) The fishery operates in the same waters and at the same time as 
sea turtles are present;
    (2) The fishery operates at the same time or prior to elevated sea 
turtle strandings; or
    (3) The fishery uses a gear or technique that is known or likely to 
result in incidental take of sea turtles based on documented or reported 
takes in the same or similar fisheries; and
    (4) NMFS intends to monitor the fishery and anticipates that it will 
have the funds to do so.
    (b) The Assistant Administrator shall publish the proposed 
determination and any final determination in the Federal Register. 
Public comment will be sought at the time of publication of the proposed 
determination. In addition, a written notification of the final 
determination will be sent to the address specified for the vessel in 
either the NMFS or state fishing permit application, or to the address 
specified for registration or documentation purposes, or such 
notification will be otherwise served on the owners or operator of the 
vessel. Additionally, NMFS will notify state agencies and provide 
notification through publication in local newspapers, radio broadcasts, 
and any other means as appropriate. The proposed and any final 
determinations will include, to the extent practicable, information on 
fishing sector, targeted gear type, target fishery, temporal and 
geographic scope of coverage, or other information, as appropriate.

[[Page 226]]

    (c) Fisheries listed on the most recent annual Marine Mammal 
Protection Act List of Fisheries in any given year, in accordance with 
16 U.S.C. 1387, will serve as the comprehensive set of commercial 
fisheries to be considered for inclusion in the annual determination. 
Recreational fisheries may also be included in the annual determination.
    (d) Publication of the proposed and final determinations should be 
coordinated to the extent possible with the annual Marine Mammal 
Protection Act List of Fisheries process as specified at 50 CFR 229.8.
    (e) Inclusion of a fishery in a proposed or final determination does 
not constitute a conclusion by NMFS that those participating in the 
fishery are illegally taking sea turtles.



Sec. 222.403  Duration of selection; effective date.

    (a) Fisheries included in the final annual determination in a given 
year will remain eligible for observer coverage under this rule for five 
years, without need for NMFS to include the fishery in the intervening 
proposed annual determinations, to enable the design of an appropriate 
sampling program and to ensure collection of scientific data. If NMFS 
wishes to continue observations beyond the fifth year, NMFS must include 
the fishery in the proposed annual determination and seek comment, prior 
to the expiration of the fifth year.
    (b) A 30-day delay in effective date for implementing observer 
coverage will follow the annual notification, except for those fisheries 
that were included in a previous determination within the preceding five 
years or where the AA has determined that there is good cause pursuant 
to the Administrative Procedure Act to make the rule effective without a 
30-day delay.



Sec. 222.404  Observer program sampling.

    (a) During the program design, NMFS would be guided by the following 
standards in the distribution and placement of observers among fisheries 
and vessels in a particular fishery:
    (1) The requirements to obtain the best available scientific 
information;
    (2) The requirement that assignment of observers is fair and 
equitable among fisheries and among vessels in a fishery;
    (3) The requirement that no individual person or vessel, or group of 
persons or vessels, be subject to inappropriate, excessive observer 
coverage; and
    (4) The need to minimize costs and avoid duplication, where 
practicable.
    (b) Consistent with 16 U.S.C. 1881(b), vessels where the facilities 
for accommodating an observer or carrying out observer functions are so 
inadequate or unsafe (due to size or quality of equipment, for example) 
that the health or safety of the observer or the safe operation of the 
vessel would be jeopardized, would not be required to take observers 
under this rule.



PART 223_THREATENED MARINE AND ANADROMOUS SPECIES--Table of Contents




                      Subpart A_General Provisions

Sec.
223.101 Purpose and scope.
223.102 Enumeration of threatened marine and anadromous species.

 Subpart B_Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species

223.201 Guadalupe fur seal.
223.202 Steller sea lion.
223.203 Anadromous fish.
223.204 Tribal plans.
223.205 Sea turtles.
223.206 Exceptions to prohibitions relating to sea turtles.
223.207 Approved TEDs.
223.208 Corals.
223.209 [Reserved]

Figures 1-2 to Part 223 [Reserved]
Figure 3 to Part 223--Matagorda TED
Figure 4 to Part 223--Georgia TED
Figure 5 to Part 223--Net Diagram for the Excluder Panel of the Parker 
          Soft TED
Figure 6 to Part 223--TED Extension in Summer Flounder Trawl
Figures 7-9b to Part 223 [Reserved]
Figure 10 to Part 223--Flounder TED
Figure 11 to Part 223 [Reserved]
Figure 12 to Part 223--Escape Opening & Cover Dimensions for 71-inch TED
Figure 13 to Part 223--Single Grid Hard TED Escape Opening

[[Page 227]]

Figure 14a to Part 223--Maximum Angle of Deflector Bars With Straight 
          Bars Attached to the Bottom of the Frame
Figure 14b to Part 223--Maximum Angle of Deflector Bars With Bent Bars 
          Attached to the Bottom of the Frame
Figure 15 to Part 223--Weedless TED Brace Bar Description
Figure 16 to Part 223--Escape Opening and Flap Dimensions for the Double 
          Cover Flap TED

    Authority: 16 U.S.C. 1531 1543; subpart B, Sec. 223.201-202 also 
issued under 16 U.S.C. 1361 et seq.; 16 U.S.C. 5503(d) for Sec. 
223.206(d)(9).

    Source: 43 FR 32809, July 28, 1978, unless otherwise noted. 
Redesignated at 64 FR 14068, Mar. 23, 1999.



                      Subpart A_General Provisions



Sec. 223.101  Purpose and scope.

    (a) The regulations contained in this part identify the species 
under the jurisdiction of the Secretary of Commerce that have been 
determined to be threatened species pursuant to section 4(a) of the Act, 
and provide for the conservation of such species by establishing rules 
and procedures to governing activities involving the species.
    (b) The regulations contained in this part apply only to the 
threatened species enumerated in Sec. 223.102.
    (c) The provisions of this part are in addition to, and not in lieu 
of, other regulations of parts 222 through 226 of this chapter which 
prescribe additional restrictions or conditions governing threatened 
species.

[64 FR 14068, Mar. 23, 1999]



Sec. 223.102  Enumeration of threatened marine and anadromous species.

    The species determined by the Secretary of Commerce to be threatened 
pursuant to section 4(a) of the Act, as well as species listed under the 
Endangered Species Conservation Act of 1969 by the Secretary of the 
Interior and currently under the jurisdiction of the Secretary of 
Commerce, are listed in the table below. The table lists the common and 
scientific names of threatened species, the locations where they are 
listed, and the Federal Register citations for the listings and critical 
habitat designations.

----------------------------------------------------------------------------------------------------------------
                    Species \1\                                           Citation(s) for      Citation(s) for
---------------------------------------------------    Where listed           listing          critical habitat
           Common name             Scientific name                       determination(s)       designation(s)
----------------------------------------------------------------------------------------------------------------
(a) Marine Mammals                 ...............  .................  ....................  ...................
(1) Guadalupe fur seal             Arctocephalus    Wherever found     50 FR 51252; Dec 16,  NA
                                    townsendi        U.S.A. (Farallon   1985
                                                     Islands of CA)
                                                     south to Mexico
                                                     (Islas
                                                     Revillagigedo)
                                   ...............  .................  ....................  ...................
(2) Steller sea lion               Eumetopias       Eastern            55 FR 13488; Apr 10,  58 FR 45278; Aug
                                    jubatus          population,        1990                  27, 1993
                                                     which consists    55 FR 50006; Dec 4,   64 FR 14067; Mar
                                                     of all Steller     1990                  23, 1999
                                                     sea lions from    62 FR 30772; Jun 5,
                                                     breeding           1997
                                                     colonies located
                                                     east of 144[deg]
                                                     W. longitude
(b) Sea Turtles                    ...............  .................  ....................  ...................
(1) Green turtle \2\               Chelonia mydas   Wherever found,    43 FR 32808; Jul 28,  63 FR 46701; Sep 2,
                                                     except where       1978                  1998
                                                     listed as                               64 FR 14067; Mar
                                                     endangered under                         23, 1999
                                                     Sec.
                                                     224.101(c);
                                                     circumglobal in
                                                     tropical and
                                                     temperate seas
                                                     and oceans
                                   ...............  .................  ....................  ...................
(2) Loggerhead turtle \2\          Caretta caretta  Wherever found;    43 FR 32808; Jul 28,  NA
                                                     circumglobal in    1978
                                                     tropical and
                                                     temperate seas
                                                     and oceans
                                   ...............  .................  ....................  ...................
(3) Olive ridley turtle \2\        Lepidochelys     Wherever found,    43 FR 32808; Jul 28,  NA
                                    olivacea         except where       1978
                                                     listed as
                                                     endangered under
                                                     Sec.
                                                     224.101(c);
                                                     circumglobal in
                                                     tropical and
                                                     temperate seas.
(c) Fishes                         ...............  .................  ....................  ...................
(1) Green sturgeon - southern DPS  Acipenser        U.S.A., CA. The    71 FR 17757; April    ...................
                                    medirostris      southern DPS       7, 2006;
                                                     includes all      71 FR 19241; April
                                                     spawning           13, 2006.
                                                     populations of
                                                     green sturgeon
                                                     south of the Eel
                                                     River
                                                     (exclusive),
                                                     principally
                                                     including the
                                                     Sacramento River
                                                     green sturgeon
                                                     spawning
                                                     population.

[[Page 228]]

 
 
(2) Gulf sturgeon                  Acipenser        Wherever found.    56 FR 49653; Sep 30,  68 FR 13370; Mar
                                    oxyrinchus                          1991                  19, 2003.
                                    desotoi
                                   ...............  .................  ....................  ...................
(3) Ozette Lake sockeye            Oncorhynchus     U.S.A.- WA,        64 FR 14528; Mar 25,  70 FR 52630; Sep 2,
                                    nerka            including all      1999                  2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     sockeye salmon
                                                     in Ozette Lake
                                                     and streams and
                                                     tributaries
                                                     flowing into
                                                     Ozette Lake,
                                                     Washington, as
                                                     well as two
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Umbrella Creek
                                                     and Big River
                                                     sockeye hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(4) Central Valley spring-run      Oncorhynchus     U.S.A.- CA,        64 FR 50394; Sep 16,  70 FR 52488; Sep 2,
 Chinook                            tshawytscha      including all      1999                  2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     spring-run
                                                     Chinook salmon
                                                     in the
                                                     Sacramento River
                                                     and its
                                                     tributaries in
                                                     California,
                                                     including the
                                                     Feather River,
                                                     as well as the
                                                     Feather River
                                                     Hatchery spring-
                                                     run Chinook
                                                     program.
                                   ...............  .................  ....................  ...................
(5) California Coastal Chinook     Oncorhynchus     U.S.A.-CA,         64 FR 50394; Sep 16,  70 FR 52488; Sep 2,
                                    tshawytscha      including all      1999                  2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     Chinook salmon
                                                     from rivers and
                                                     streams south of
                                                     the Klamath
                                                     River to the
                                                     Russian River,
                                                     California, as
                                                     well as seven
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Humboldt Fish
                                                     Action Council
                                                     (Freshwater
                                                     Creek), Yager
                                                     Creek, Redwood
                                                     Creek, Hollow
                                                     Tree, Van
                                                     Arsdale Fish
                                                     Station, Mattole
                                                     Salmon Group,
                                                     and Mad River
                                                     Hatchery fall-
                                                     run Chinook
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(6) Upper Willamette River         Oncorhynchus     U.S.A.- OR,        64 FR 14308; Mar. 24  70 FR 52630; Sep 2,
 Chinook                            tshawytscha      including all      1999                  2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     spring-run
                                                     Chinook salmon
                                                     in the Clackamas
                                                     River and in the
                                                     Willamette
                                                     River, and its
                                                     tributaries,
                                                     above Willamette
                                                     Falls, Oregon,
                                                     as well as seven
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     McKenzie River
                                                     Hatchery (Oregon
                                                     Department of
                                                     Fish and
                                                     Wildlife (ODFW)
                                                     stock 24), Marion
                                                     Forks/North Fork
                                                     Santiam River
                                                     (ODFW stock
                                                     21),
                                                     South Santiam
                                                     Hatchery (ODFW
                                                     stock 23) in the
                                                     South Fork
                                                     Santiam River,
                                                     South Santiam
                                                     Hatchery in the
                                                     Calapooia River,
                                                     South Santiam
                                                     Hatchery in the
                                                     Mollala River,
                                                     Willamette
                                                     Hatchery (ODFW
                                                     stock 
                                                     22), and
                                                     Clackamas
                                                     hatchery (ODFW
                                                     stock 19) spring-run
                                                     Chinook hatchery
                                                     programs.
 

[[Page 229]]

 
(7) Lower Columbia River Chinook   Oncorhynchus     U.S.A.- OR, WA,    64 FR 14308; Mar.     70 FR 52630; Sep 2,
                                    tshawytscha      including all      24, 1999              2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     Chinook salmon
                                                     from the
                                                     Columbia River
                                                     and its
                                                     tributaries from
                                                     its mouth at the
                                                     Pacific Ocean
                                                     upstream to a
                                                     transitional
                                                     point between
                                                     Washington and
                                                     Oregon east of
                                                     the Hood River
                                                     and the White
                                                     Salmon River,
                                                     and includes the
                                                     Willamette River
                                                     to Willamette
                                                     Falls, Oregon,
                                                     exclusive of
                                                     spring-run
                                                     Chinook salmon
                                                     in the Clackamas
                                                     River, as well
                                                     as seventeen
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Sea Resources
                                                     Tule Chinook
                                                     Program, Big
                                                     Creek Tule
                                                     Chinook Program,
                                                     Astoria High
                                                     School (STEP)
                                                     Tule Chinook
                                                     Program,
                                                     Warrenton High
                                                     School (STEP)
                                                     Tule Chinook
                                                     Program,
                                                     Elochoman River
                                                     Tule Chinook
                                                     Program, Cowlitz
                                                     Tule Chinook
                                                     Program, North
                                                     Fork Toutle Tule
                                                     Chinook Program,
                                                     Kalama Tule
                                                     Chinook Program,
                                                     Washougal River
                                                     Tule Chinook
                                                     Program, Spring
                                                     Creek NFH Tule
                                                     Chinook Program,
                                                     Cowlitz spring
                                                     Chinook Program
                                                     in the Upper
                                                     Cowlitz River
                                                     and the Cispus
                                                     River, Friends
                                                     of the Cowlitz
                                                     spring Chinook
                                                     Program, Kalama
                                                     River spring
                                                     Chinook Program,
                                                     Lewis River
                                                     spring Chinook
                                                     Program, Fish
                                                     First spring
                                                     Chinook Program,
                                                     and the Sandy
                                                     River Hatchery
                                                     (ODFW stock
                                                     11)
                                                     Chinook hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................

[[Page 230]]

 
(8) Puget Sound Chinook            Oncorhynchus     U.S.A.- WA,        64 FR 14308; Mar.     70 FR 52630; Sep 2,
                                    tshawytscha      including all      24, 1999              2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     Chinook salmon
                                                     from rivers and
                                                     streams flowing
                                                     into Puget Sound
                                                     including the
                                                     Straits of Juan
                                                     De Fuca from the
                                                     Elwha River,
                                                     eastward,
                                                     including rivers
                                                     and streams
                                                     flowing into
                                                     Hood Canal,
                                                     South Sound,
                                                     North Sound and
                                                     the Strait of
                                                     Georgia in
                                                     Washington, as
                                                     well as twenty-
                                                     six artificial
                                                     propagation
                                                     programs: the
                                                     Kendal Creek
                                                     Hatchery,
                                                     Marblemount
                                                     Hatchery (fall,
                                                     spring
                                                     yearlings,
                                                     spring
                                                     subyearlings,
                                                     and summer run),
                                                     Harvey Creek
                                                     Hatchery,
                                                     Whitehorse
                                                     Springs Pond,
                                                     Wallace River
                                                     Hatchery
                                                     (yearlings and
                                                     subyearlings),
                                                     Tulalip Bay,
                                                     Issaquah
                                                     Hatchery, Soos
                                                     Creek Hatchery,
                                                     Icy Creek
                                                     Hatchery, Keta
                                                     Creek Hatchery,
                                                     White River
                                                     Hatchery, White
                                                     Acclimation
                                                     Pond, Hupp
                                                     Springs
                                                     Hatchery,
                                                     Voights Creek
                                                     Hatchery, Diru
                                                     Creek, Clear
                                                     Creek, Kalama
                                                     Creek, George
                                                     Adams Hatchery,
                                                     Rick's Pond
                                                     Hatchery, Hamma
                                                     Hamma Hatchery,
                                                     Dungeness/Hurd
                                                     Creek Hatchery,
                                                     Elwha Channel
                                                     Hatchery Chinook
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(9) Snake River fall-run Chinook   Oncorhynchus     U.S.A.- OR, WA,    57 FR 14653; Apr 22,  58 FR 68543; Dec
                                    tshawytscha      ID, including      1992                  28, 1993.
                                                     all naturally     57 FR 23458; Jun 3,
                                                     spawned            1992
                                                     populations of    70 FR 37160; Jun 28,
                                                     fall-run Chinook   2005
                                                     salmon in the
                                                     mainstem Snake
                                                     River below
                                                     Hells Canyon
                                                     Dam, and in the
                                                     Tucannon River,
                                                     Grande Ronde
                                                     River, Imnaha
                                                     River, Salmon
                                                     River, and
                                                     Clearwater
                                                     River, as well
                                                     as four
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Lyons Ferry
                                                     Hatchery, Fall
                                                     Chinook
                                                     Acclimation
                                                     Ponds Program,
                                                     Nez Perce Tribal
                                                     Hatchery, and
                                                     Oxbow Hatchery
                                                     fall-run Chinook
                                                     hatchery
                                                     programs.

[[Page 231]]

 
                                   ...............  .................  ....................  ...................
(10) Snake River spring/summer-    Oncorhynchus     U.S.A.- OR, WA,    57 FR 14653; Apr 22,  58 FR 68543; Dec
 run Chinook                        tshawytscha      ID, including      1992                  28, 1993
                                                     all naturally     57 FR 23458; Jun 3,   64 FR 57399; Oct
                                                     spawned            1992                  25, 1999.
                                                     populations of    70 FR 37160; Jun 28,
                                                     spring/summer-     2005
                                                     run Chinook
                                                     salmon in the
                                                     mainstem Snake
                                                     River and the
                                                     Tucannon River,
                                                     Grande Ronde
                                                     River, Imnaha
                                                     River, and
                                                     Salmon River
                                                     subbasins, as
                                                     well as fifteen
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Tucannon River
                                                     conventional
                                                     Hatchery,
                                                     Tucannon River
                                                     Captive
                                                     Broodstock
                                                     Program, Lostine
                                                     River, Catherine
                                                     Creek,
                                                     Lookingglass
                                                     Hatchery, Upper
                                                     Grande Ronde,
                                                     Imnaha River,
                                                     Big Sheep Creek,
                                                     McCall Hatchery,
                                                     Johnson Creek
                                                     Artificial
                                                     Propagation
                                                     Enhancement,
                                                     Lemhi River
                                                     Captive Rearing
                                                     Experiment,
                                                     Pahsimeroi
                                                     Hatchery, East
                                                     Fork Captive
                                                     Rearing
                                                     Experiment, West
                                                     Fork Yankee Fork
                                                     Captive Rearing
                                                     Experiment, and
                                                     the Sawtooth
                                                     Hatchery spring/
                                                     summer-run
                                                     Chinook hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(11) Southern Oregon/Northern      Oncorhynchus     U.S.A.- CA, OR,    62 FR 24588; May 6,   64 FR 24049; May 5,
 California Coast coho              kisutch          including all      1997                  1999.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     coho salmon in
                                                     coastal streams
                                                     between Cape
                                                     Blanco, Oregon,
                                                     and Punta Gorda,
                                                     California, as
                                                     well three
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Cole Rivers
                                                     Hatchery (ODFW
                                                     stock 
                                                     52), Trinity
                                                     River Hatchery,
                                                     and Iron Gate
                                                     Hatchery coho
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................

[[Page 232]]

 
(12) Lower Columbia River coho     Oncorhynchus     U.S.A.- OR, WA,    70 FR 37160; Jun 28,  NA.
                                    kisutch          including all      2005
                                                     naturally
                                                     spawned
                                                     populations of
                                                     coho salmon in
                                                     the Columbia
                                                     River and its
                                                     tributaries in
                                                     Washington and
                                                     Oregon, from the
                                                     mouth of the
                                                     Columbia up to
                                                     and including
                                                     the Big White
                                                     Salmon and Hood
                                                     Rivers, and
                                                     includes the
                                                     Willamette River
                                                     to Willamette
                                                     Falls, Oregon,
                                                     as well as
                                                     twenty-five
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Grays River, Sea
                                                     Resources
                                                     Hatchery,
                                                     Peterson Coho
                                                     Project, Big
                                                     Creek Hatchery,
                                                     Astoria High
                                                     School (STEP)
                                                     Coho Program,
                                                     Warrenton High
                                                     School (STEP)
                                                     Coho Program,
                                                     Elochoman Type-S
                                                     Coho Program,
                                                     Elochoman Type-N
                                                     Coho Program,
                                                     Cathlamet High
                                                     School FFA Type-
                                                     N Coho Program,
                                                     Cowlitz Type-N
                                                     Coho Program in
                                                     the Upper and
                                                     Lower Cowlitz
                                                     Rivers, Cowlitz
                                                     Game and Anglers
                                                     Coho Program,
                                                     Friends of the
                                                     Cowlitz Coho
                                                     Program, North
                                                     Fork Toutle
                                                     River Hatchery,
                                                     Kalama River
                                                     Type-N Coho
                                                     Program, Kalama
                                                     River Type-S
                                                     Coho Program,
                                                     Lewis River Type-
                                                     N Coho Program,
                                                     Lewis River Type-
                                                     S Coho Program,
                                                     Fish First Wild
                                                     Coho Program,
                                                     Fish First Type-
                                                     N Coho Program,
                                                     Syverson Project
                                                     Type-N Coho
                                                     Program, Eagle
                                                     Creek National
                                                     Fish Hatchery,
                                                     Sandy Hatchery,
                                                     and the
                                                     Bonneville/
                                                     Cascade/Oxbow
                                                     complex coho
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(13) Columbia River chum           Oncorhynchus     U.S.A.- OR, WA,    64 FR 14508; Mar.     70 FR 52630; Sep 2,
                                    keta             including all      25, 1999              2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     chum salmon in
                                                     the Columbia
                                                     River and its
                                                     tributaries in
                                                     Washington and
                                                     Oregon, as well
                                                     as three
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Chinook River
                                                     (Sea Resources
                                                     Hatchery), Grays
                                                     River, and
                                                     Washougal River/
                                                     Duncan Creek
                                                     chum hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................

[[Page 233]]

 
(14) Hood Canal summer-run chum    Oncorhynchus     U.S.A.- WA,        64 FR 14508; Mar.     70 FR 52630; Sep 2,
                                    keta             including all      25, 1999              2005.
                                                     naturally         70 FR 37160; Jun 28,
                                                     spawned            2005
                                                     populations of
                                                     summer-run chum
                                                     salmon in Hood
                                                     Canal and its
                                                     tributaries as
                                                     well as
                                                     populations in
                                                     Olympic
                                                     Peninsula rivers
                                                     between Hood
                                                     Canal and
                                                     Dungeness Bay,
                                                     Washington, as
                                                     well as eight
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Quilcene NFH,
                                                     Hamma Hamma Fish
                                                     Hatchery,
                                                     Lilliwaup Creek
                                                     Fish Hatchery,
                                                     Union River/
                                                     Tahuya, Big Beef
                                                     Creek Fish
                                                     Hatchery, Salmon
                                                     Creek Fish
                                                     Hatchery,
                                                     Chimacum Creek
                                                     Fish Hatchery,
                                                     and the
                                                     Jimmycomelately
                                                     Creek Fish
                                                     Hatchery summer-
                                                     run chum
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(15) South-Central California      Oncorhynchus     U.S.A.- CA,        62 FR 43937; Aug 18,  70 FR 52488; Sep 2,
 Coast Steelhead                    mykiss           including all      1997                  2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in streams from
                                                     the Pajaro River
                                                     (inclusive),
                                                     located in Santa
                                                     Cruz County,
                                                     California, to
                                                     (but not
                                                     including) the
                                                     Santa Maria
                                                     River.
                                   ...............  .................  ....................  ...................
(16) Central California Coast      Oncorhynchus     U.S.A.- CA,        62 FR 43937; Aug 18,  70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      1997                  2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in streams from
                                                     the Russian
                                                     River to Aptos
                                                     Creek, Santa
                                                     Cruz County,
                                                     Californian
                                                     (inclusive), and
                                                     the drainages of
                                                     San Francisco
                                                     and San Pablo
                                                     Bays eastward to
                                                     the Napa River
                                                     (inclusive),
                                                     Napa County,
                                                     California.
                                                     Excludes the
                                                     Sacramento-San
                                                     Joaquin River
                                                     Basin of the
                                                     Central Valley
                                                     of California.
                                   ...............  .................  ....................  ...................
(17) California Central Valley     Oncorhynchus     U.S.A.- CA,        63 FR 13347; Mar.     70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      19, 1998              2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in the
                                                     Sacramento and
                                                     San Joaquin
                                                     Rivers and their
                                                     tributaries,
                                                     excluding
                                                     steelhead from
                                                     San Francisco
                                                     and San Pablo
                                                     Bays and their
                                                     tributaries.
                                   ...............  .................  ....................  ...................
(18) Northern California           Oncorhynchus     U.S.A.- CA,        65 FR 36074; June 7,  70 FR 52488; Sep 2,
 Steelhead                          mykiss           including all      2000                  2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in California
                                                     coastal river
                                                     basins from
                                                     Redwood Creek in
                                                     Humboldt County,
                                                     California, to
                                                     the Gualala
                                                     River,
                                                     inclusive, in
                                                     Mendocino
                                                     County,
                                                     California.
                                   ...............  .................  ....................  ...................
(19) Upper Willamette River        Oncorhynchus     U.S.A.- OR,        62 FR 43937; Aug 18,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1997                  2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     winter-run
                                                     steelhead in the
                                                     Willamette
                                                     River, Oregon,
                                                     and its
                                                     tributaries
                                                     upstream from
                                                     Willamette Falls
                                                     to the Calapooia
                                                     River,
                                                     inclusive.
                                   ...............  .................  ....................  ...................

[[Page 234]]

 
(20) Lower Columbia River          Oncorhynchus     U.S.A.- OR, WA,    63 FR 13347; Mar 19,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1998                  2005
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in streams and
                                                     tributaries to
                                                     the Columbia
                                                     River between
                                                     the Cowlitz and
                                                     Wind Rivers,
                                                     Washington,
                                                     inclusive, and
                                                     the Willamette
                                                     and Hood Rivers,
                                                     Oregon,
                                                     inclusive.
                                                     Excluded are
                                                     steelhead in the
                                                     upper Willamette
                                                     River Basin
                                                     above Willamette
                                                     Falls, Oregon,
                                                     and from the
                                                     Little and Big
                                                     White Salmon
                                                     Rivers,
                                                     Washington.
                                   ...............  .................  ....................  ...................
(21) Middle Columbia River         Oncorhynchus     U.S.A.- OR, WA,    57 FR 14517; Mar 25,  70 FR 52630; Sep 2,
 Steelhead                          mykiss           including all      1999                  2005.
                                                     naturally         71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead in
                                                     streams from
                                                     above the Wind
                                                     River,
                                                     Washington, and
                                                     the Hood River,
                                                     Oregon
                                                     (exclusive),
                                                     upstream to, and
                                                     including, the
                                                     Yakima River,
                                                     Washington.
                                                     Excluded are
                                                     steelhead from
                                                     the Snake River
                                                     Basin.
                                   ...............  .................  ....................  ...................
(22) Snake River Basin Steelhead   Oncorhynchus     U.S.A.- OR, WA,    62 FR 43937; Aug 18,  70 FR 52630; Sep 2,
                                    mykiss           ID, including      1997                  2005.
                                                     all naturally     71 FR 834; Jan 5,
                                                     spawned            2006
                                                     populations of
                                                     steelhead (and
                                                     their progeny)
                                                     in streams in
                                                     the Snake River
                                                     Basin of
                                                     southeast
                                                     Washington,
                                                     northeast
                                                     Oregon, and
                                                     Idaho.
                                   ...............  .................  ....................  ...................
(23) Puget Sound Steelhead         Oncorhynchus     U.S.A., WA,        72 FR 26722; May 11,  NA.
                                    mykiss           Distinct           2007
                                                     Population
                                                     Segment
                                                     including all
                                                     naturally
                                                     spawned
                                                     anadromous O.
                                                     mykiss
                                                     (steelhead)
                                                     populations,
                                                     from streams in
                                                     the river basins
                                                     of the Strait of
                                                     Juan de Fuca,
                                                     Puget Sound, and
                                                     Hood Canal,
                                                     Washington,
                                                     bounded to the
                                                     west by the
                                                     Elwha River
                                                     (inclusive) and
                                                     to the north by
                                                     the Nooksack
                                                     River and Dakota
                                                     Creek
                                                     (inclusive), as
                                                     well as the
                                                     Green River
                                                     natural and
                                                     Hamma Hamma
                                                     winter-run
                                                     steelhead
                                                     hatchery stocks.
                                   ...............  .................  ....................  ...................
(24) Oregon Coast Coho             Oncorhynchus     U.S.A., OR, all    73 FR 7816; Feb 11,   73 FR 7816; Feb 11,
                                    kisutch          naturally          2008                  2008.
                                                     spawned
                                                     populations of
                                                     coho salmon in
                                                     Oregon coastal
                                                     streams south of
                                                     the Columbia
                                                     River and north
                                                     of Cape Blanco,
                                                     including the
                                                     Cow Creek (ODFW
                                                     stock 37) coho
                                                     hatchery program
                                   ...............  .................  ....................  ...................

[[Page 235]]

 
(25) Upper Columbia River          Oncorhynchus     U.S.A., WA,        71 FR 834; Jan 5,     70 FR 52630; Sep 2,
 steelhead                          mykiss           Distinct           2006                  2005.
                                                     Population
                                                     Segment
                                                     including all
                                                     naturally
                                                     spawned
                                                     anadromous O.
                                                     mykiss
                                                     (steelhead)
                                                     populations
                                                     below natural
                                                     and manmade
                                                     impassable
                                                     barriers in
                                                     streams in the
                                                     Columbia River
                                                     Basin upstream
                                                     from the Yakima
                                                     River,
                                                     Washington, to
                                                     the U.S.-Canada
                                                     border, as well
                                                     as six
                                                     artificial
                                                     propagation
                                                     programs: the
                                                     Wenatchee River,
                                                     Wells Hatchery
                                                     (in the Methow
                                                     and Okanogan
                                                     Rivers),
                                                     Winthrop NFH,
                                                     Omak Creek, and
                                                     the Ringold
                                                     steelhead
                                                     hatchery
                                                     programs.
                                   ...............  .................  ....................  ...................
(d) Marine Invertebrates           ...............  .................  ....................  ...................
                                   ...............  .................  ....................  ...................
(1) Elkhorn coral                  Acropora         Wherever found.    71 FR 26852, May 9,   73 FR 72210, Nov.
                                    palmata          Includes United    2006                  26, 2008
                                                     States Florida,
                                                     Puerto Rico,
                                                     U.S. Virgin
                                                     Islands,
                                                     Navassa; and
                                                     wider Caribbean
                                                     Belize,
                                                     Colombia, Costa
                                                     Rica, Guatemala,
                                                     Honduras,
                                                     Mexico,
                                                     Nicaragua,
                                                     Panama,
                                                     Venezuela and
                                                     all the islands
                                                     of the West
                                                     Indies.
                                   ...............  .................  ....................  ...................
(2) Staghorn coral                 Acropora         Wherever found.    71 FR 26852, May 9,   73 FR 72210, Nov.
                                    cervicornis      Includes United    2006                  26, 2008
                                                     States Florida,
                                                     Puerto Rico,
                                                     U.S. Virgin
                                                     Islands,
                                                     Navassa; and
                                                     wider Caribbean
                                                     Belize,
                                                     Colombia, Costa
                                                     Rica, Guatemala,
                                                     Honduras,
                                                     Mexico,
                                                     Nicaragua,
                                                     Panama,
                                                     Venezuela and
                                                     all the islands
                                                     of the West
                                                     Indies.
                                   ...............  .................  ....................  ...................
(e) Marine Plants                  ...............  .................  ....................  ...................
                                   ...............  .................  ....................  ...................
(1) Johnson's seagrass             Halophila        Wherever found.    63 FR 49035; Sep 14,  65 FR 17786; Apr 5,
                                    johnsonii        U.S.A. -           1998                  2000
                                                     Southeastern FL
                                                     between
                                                     Sebastian Inlet
                                                     and north
                                                     Biscayne Bay.
----------------------------------------------------------------------------------------------------------------
\1\ Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement,
  see 61 FR 4722, February 7, 1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56
  FR 58612, November 20, 1991).
\2\ Jurisdiction for sea turtles by the Department of Commerce, National Oceanic and Atmospheric Administration,
  National Marine Fisheries Service, is limited to turtles while in the water.


[71 FR 26861, May 9, 2006, as amended at 71 FR 31965, June 2, 2006; 71 
FR 38270, July 6, 2006; 72 FR 26734, May 11, 2007; 73 FR 7843, Feb. 11, 
2008; 73 FR 72236, Nov. 26, 2008; 74 FR 42606, Aug. 24, 2009]



 Subpart B_Restrictions Applicable to Threatened Marine and Anadromous 
                                 Species



Sec. 223.201  Guadalupe fur seal.

    (a) Prohibitions. The prohibitions of section 9 of the Act (16 
U.S.C. 1538) relating to endangered species apply to the Guadalupe fur 
seal except as provided in paragraph (b) of this section.
    (b) Exceptions. (1) The Assistant Administrator may issue permits 
authorizing activities which would otherwise be prohibited under 
paragraph (a) of this section in accordance with the

[[Page 236]]

subject to the provisions of part 222 subpart C--General Permit 
Procedures.
    (2) Any Federal, State or local government official, employee, or 
designated agent may, in the course of official duties, take a stranded 
Guadalupe fur seal without a permit if such taking:
    (i) Is accomplished in a humane manner;
    (ii) Is for the protection or welfare of the animal, is for the 
protection of the public health or welfare, or is for the salvage or 
disposal of a dead specimen;
    (iii) Includes steps designed to ensure the return of the animal to 
its natural habitat, if feasible; and
    (iv) Is reported within 30 days to the Regional Administrator, 
Southwest Region, National Marine Fisheries Service, 501 West Ocean 
Blvd., Suite 4200, Long Beach, CA 90802.
    (3) Any animal or specimen taken under paragraph (b)(2) of this 
section may only be retained, disposed of, or salvaged in accordance 
with directions from the Director, Southwest Region.

[50 FR 51258, Dec. 16, 1985. Redesignated and amended at 64 FR 14068, 
Mar. 23, 1999]



Sec. 223.202  Steller sea lion.

    (a) General prohibitions. The prohibitions of section 9 of the Act 
(16 U.S.C. 1538) and the following regulatory provisions shall apply to 
the eastern population of Steller sea lions:
    (1) No discharge of firearms. Except as provided in paragraph (b) of 
this section, no person subject to the jurisdiction of the United States 
may discharge a firearm at or within 100 yards (91.4 meters) of a 
Steller sea lion. A firearm is any weapon, such as a pistol or rifle, 
capable of firing a missile using an explosive charge as a propellant.
    (2) No approach in buffer areas. Except as provided in paragraph (b) 
of this section:
    (i) No owner or operator of a vessel may allow the vessel to 
approach within 3 nautical miles (5.5 kilometers) of a Steller sea lion 
rookery site listed in paragraph (a)(3) of this section;
    (ii) No person may approach on land not privately owned within one-
half statutory miles (0.8 kilometers) or within sight of a Steller sea 
lion rookery site listed in paragraph (a)(3) of this section, whichever 
is greater, except on Marmot Island; and
    (iii) No person may approach on land not privately owned within one 
and one-half statutory miles (2.4 kilometers) or within sight of the 
eastern shore of Marmot Island, including the Steller sea lion rookery 
site listed in paragraph (a)(3) of this section, whichever is greater.
    (3) Listed sea lion rookery sites. Listed Steller sea lion rookery 
sites consist of the rookeries in the Aleutian Islands and the Gulf of 
Alaska listed in Table 1.

                      Table 1 to Sec.  223.202--Listed Steller Sea Lion Rookery Sites \1\
----------------------------------------------------------------------------------------------------------------
                                            From                    To
              Island              ---------------------------------------------- NOAA chart         Notes
                                      Lat.        Long.       Lat.      Long.
----------------------------------------------------------------------------------------------------------------
1. Outer I.......................  59[deg]20.  150[deg]23  59[deg]21  150[deg]2      16681   S quadrant.
                                    5 N         .0 W        .0 N       4.5 W
2. Sugarloaf I...................  58[deg]53.  152[deg]02  .........  .........      16580   Whole island.
                                    0 N         .0 W
3. Marmot I......................  58[deg]14.  151[deg]47  58[deg]10  151[deg]5      16580   SE quadrant.
                                    5 N         .5 W        .0 N       1.0 W
4. Chirikof I....................  55[deg]46.  155[deg]39  55[deg]46  155[deg]4      16580   S quadrant.
                                    5 N         .5 W        .5 N       3.0 W
5. Chowiet I.....................  56[deg]00.  156[deg]41  56[deg]00  156[deg]4      16013   S quadrant.
                                    5 N         .5 W        .5 N       2.0 W
6. Atkins I......................  55[deg]03.  159[deg]18  .........  .........      16540   Whole island.
                                    5 N         .5 W
7. Chernabura I..................  54[deg]47.  159[deg]31  54[deg]45  159[deg]3      16540   SE corner.
                                    5 N         .0 W        .5 N       3.5 W
8. Pinnacle Rock.................  54[deg]46.  161[deg]46  .........  .........      16540   Whole island.
                                    0 N         .0 W
9. Clubbing Rks (N)..............  54[deg]43.  162[deg]26  .........  .........      16540   Whole island.
                                    0 N         .5 W
Clubbing Rks (S).................  54[deg]42.  162[deg]26  .........  .........      16540   Whole Island.
                                    0 N         .5 W
10. Sea Lion Rks.................  55[deg]28.  163[deg]12  .........  .........      16520   Whole island.
                                    0 N         .0 W
11. Ugamak I.....................  54[deg]14.  164[deg]48  54[deg]13  164[deg]4      16520   E end of island.
                                    0 N         .0 W        .0 N       8.0 W
12. Akun I.......................  54[deg]18.  165[deg]32  54[deg]18  165[deg]3      16547   Billings Head
                                    0 N         .5 W        .0 N       1.5 W                  Bight.
13. Akutan I.....................  54[deg]03.  166[deg]00  54[deg]05  166[deg]0      16520   SW corner, Cape
                                    5 N         .0 W        .5 N       5.0 W                  Morgan.
14. Bogoslof I...................  53[deg]56.  168[deg]02  .........  .........      16500   Whole island.
                                    0 N         .0 W
15. Ogchul I.....................  53[deg]00.  168[deg]24  .........  .........      16500   Whole island.
                                    0 N         .0 W
16. Adugak I.....................  52[deg]55.  169[deg]10  .........  .........      16500   Whole island.
                                    0 N         .5 W
17. Yunaska I....................  52[deg]42.  170[deg]38  52[deg]41  170[deg]3      16500   NE end.
                                    0 N         .5 W        .0 N       4.5 W
18. Seguam I.....................  52[deg]21.  172[deg]35  52[deg]21  172[deg]3      16480   N coast,
                                    0 N         .0 W        .0 N       3.0 W                  Saddleridge Pt.
19. Agligadak I..................  52[deg]06.  172[deg]54  .........  .........      16480   Whole island.
                                    5 N         .0 W

[[Page 237]]

 
20. Kasatochi I..................  52[deg]10.  175[deg]31  52[deg]10  175[deg]2      16480   N half of island.
                                    0 N         .5 W        .5 N       9.0 W
21. Adak I.......................  51[deg]36.  176[deg]59  51[deg]38  176[deg]5      16460   SW Point, Lake
                                    5 N         .0 W        .0 N       9.5 W                  Point.
22. Gramp rock...................  51[deg]29.  178[deg]20  .........  .........      16460   Whole island.
                                    0 N         .5 W
23. Tag I........................  51[deg]33.  178[deg]34  .........  .........      16460   Whole island.
                                    5 N         .5 W
24. Ulak I.......................  51[deg]20.  178[deg]57  51[deg]18  178[deg]5      16460   SE corner, Hasgox
                                    0 N         .0 W        .5 N       9.5 W                  Pt.
25. Semisopochnoi................  51[deg]58.  179[deg]45  51[deg]57  179[deg]4      16440   E quadrant, Pochnoi
                                    5 N         .5 E        .0 N       6.0 E                  Pt.
Semisopochnoi....................  52[deg]01.  179[deg]37  52[deg]01  179[deg]3      16440   N quadrant, Petrel
                                    5 N         .5 E        .5 N       9.0 E                  Pt.
26. Amchitka I...................  51[deg]22.  179[deg]28  51[deg]21  179[deg]2      16440   East Cape.
                                    5 N         .0 E        .5 N       5.0 E
27. Amchitka I...................  51[deg]32.  178[deg]49  .........  .........      16440   Column Rocks.
                                    5 N         .5 E
28. Ayugadak Pt..................  51[deg]45.  178[deg]24  .........  .........      16440   SE coast of Rat
                                    5 N         .5 E                                          Island.
29. Kiska I......................  51[deg]57.  177[deg]21  51[deg]56  177[deg]2      16440   W central, Lief
                                    5 N         .0 E        .5 N       0.0 E                  Cove.
30. Kiska I......................  51[deg]52.  177[deg]13  51[deg]53  177[deg]1      16440   Cape St. Stephen.
                                    5 N         .0 E        .5 N       2.0 E
31. Walrus I.....................  57[deg]11.  169[deg]56  .........  .........      16380   Whole island.
                                    0 N         .0 W
32. Buldir I.....................  52[deg]20.  175[deg]57  52[deg]23  175[deg]5      16420   Se point to NW
                                    5 N         .0 E        .5 N       1.0 E                  point.
33. Agattu I.....................  52[deg]24.  173[deg]21  .........  .........      16420   Gillion Point.
                                    0 N         .5 E
34. Agattu I.....................  52[deg]23.  173[deg]43  52[deg]22  173[deg]4      16420   Cape Sabak.
                                    5 N         .5 E        .0 N       1.0 E
35. Attu I.......................  52[deg]54.  172[deg]28  52[deg]57  172[deg]3      16681   S Quadrant.
                                    5 N         .5 E        .5 N       1.5 E
----------------------------------------------------------------------------------------------------------------
\1\ Each site extends in a clockwise direction from the first set of geographic coordinates along the shoreline
  at mean lower low water to the second set of coordinates; or, if only one set of geographic coordinates is
  listed, the site extends around the entire shoreline of the island at mean lower low water.


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    (4) Commercial Fishing Operations. The incidental mortality and 
serious injury of endangered and threatened Steller sea lions in 
commercial fisheries can be authorized in compliance with sections 
101(a)(5) and 118 of the Marine Mammal Protection Act.
    (b) Exceptions--(1) Permits. The Assistant Administrator may issue 
permits authorizing activities that would otherwise be prohibited under 
paragraph (a) of this section in accordance with and subject to the 
provisions of part 222, subpart C--General Permit Procedures.

[[Page 267]]

    (2) Official activities. The taking of Steller sea lions must be 
reported within 30 days to the Regional Administrator, Alaska Region. 
Paragraph (a) of this section does not prohibit or restrict a Federal, 
state or local government official, or his or her designee, who is 
acting in the course of official duties from:
    (i) Taking a Steller sea lion in a humane manner, if the taking is 
for the protection or welfare of the animal, the protection of the 
public health and welfare, or the nonlethal removal of nuisance animals; 
or
    (ii) Entering the buffer areas to perform activities that are 
necessary for national defense, or the performance of other legitimate 
governmental activities.
    (3) Subsistence takings by Alaska natives. Paragraph (a) of this 
section does not apply to the taking of Steller sea lions for 
subsistence purposes under section 10(e) of the Act.
    (4) Emergency situations. Paragraph (a)(2) of this section does not 
apply to an emergency situation in which compliance with that provision 
presents a threat to the health, safety, or life of a person or presents 
a significant threat to the vessel or property.
    (5) Exemptions. Paragraph (a)(2) of this section does not apply to 
any activity authorized by a prior written exemption from the Director, 
Alaska Region, National Marine Fisheries Service. Concurrently with the 
issuance of any exemption, the Assistant Administrator will publish 
notice of the exemption in the Federal Register. An exemption may be 
granted only if the activity will not have a significant adverse affect 
on Steller sea lions, the activity has been conducted historically or 
traditionally in the buffer zones, and there is no readily available and 
acceptable alternative to or site for the activity.
    (6) Navigational transit. Paragraph (a)(2) of this section does not 
prohibit a vessel in transit from passing through a strait, narrows, or 
passageway listed in this paragraph if the vessel proceeds in continuous 
transit and maintains a minimum of 1 nautical mile from the rookery 
site. The listing of a strait, narrows, or passageway does not indicate 
that the area is safe for navigation. The listed straits, narrows, or 
passageways include the following:

------------------------------------------------------------------------
                Rookery                     Straits, narrows, or pass
------------------------------------------------------------------------
Akutan Island..........................  Akutan Pass between Cape Morgan
                                          and Unalga Island.
Clubbing Rocks.........................  Between Clubbing Rocks and
                                          Cherni Island.
Outer Island...........................  Wildcat Pass between Rabbit and
                                          Ragged Islands.
------------------------------------------------------------------------

    (c) Penalties. (1) Any person who violates this section or the Act 
is subject to the penalties specified in section 11 of the Act, and any 
other penalties provided by law.
    (2) Any vessel used in violation of this section or the Endangered 
Species Act is subject to forfeiture under section 11(e)(4)(B) of the 
Act.

[55 FR 49210, Nov. 26, 1990, as amended at 56 FR 42542, Aug. 28, 1991; 
56 FR 58184, Nov. 18, 1991; 58 FR 16371, Mar. 26, 1993; 58 FR 53139, 
53141, Oct. 14, 1993; 58 FR 58594, Nov. 2, 1993; 62 FR 24355, May 5, 
1997. Redesignated and amended at 64 FR 14068-14069, Mar. 23, 1999]



Sec. 223.203  Anadromous fish.

    Available guidance documents cited in the regulatory text are listed 
in Appendix A to this section.
    (a) Prohibitions. The prohibitions of section 9(a)(1) of the ESA (16 
U.S.C. 1538(a)(1)) relating to endangered species apply to fish with an 
intact adipose fin that are part of the threatened species of salmonids 
listed in Sec. 223.102(c)(3) through (c)(24).
    (b) Limits on the prohibitions. The limits to the prohibitions of 
paragraph (a) of this section relating to threatened species of 
salmonids listed in Sec. 223.102(c)(3) through (c)(24) are described in 
the following paragraphs (b)(1) through (b)(13):
    (1) The exceptions of section 10 of the ESA (16 U.S.C. 1539) and 
other exceptions under the Act relating to endangered species, including 
regulations in part 222 of this chapter implementing such exceptions, 
also apply to the threatened species of salmonids listed in Sec. 
223.102(a).
    (2) The prohibitions of paragraph (a) of this section relating to 
threatened Puget Sound steelhead listed in Sec. 223.102(c)(23) do not 
apply to:
    (i) Activities specified in an application for a permit for 
scientific purposes

[[Page 268]]

or to enhance the conservation or survival of the species, provided that 
the application has been received by the Assistant Administrator for 
Fisheries, NOAA (AA), no later than November 14, 2008. The prohibitions 
of this section apply to these activities upon the AA's rejection of the 
application as insufficient, upon issuance or denial of a permit, or 
June 1, 2009, whichever occurs earliest, or
    (ii) Steelhead harvested in tribal or recreational fisheries prior 
to June 1, 2009, so long as the harvest is authorized by the State of 
Washington or a tribe with jurisdiction over steelhead harvest. If NMFS 
does not receive a fishery management plan for Puget Sound steelhead by 
November 14, 2008, subsequent take by harvest will be subject to the 
take prohibitions.
    (3) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to any employee or designee of NMFS, the United States Fish and Wildlife 
Service, any Federal land management agency, the Idaho Department of 
Fish and Game (IDFG), Washington Department of Fish and Wildlife (WDFW), 
the Oregon Department of Fish and Wildlife (ODFW), California Department 
of Fish and Game (CDFG), or of any other governmental entity that has 
co-management authority for the listed salmonids, when the employee or 
designee, acting in the course of his or her official duties, takes a 
threatened salmonid without a permit if such action is necessary to:
    (i) Aid a sick, injured, or stranded salmonid,
    (ii) Dispose of a dead salmonid, or
    (iii) Salvage a dead salmonid which may be useful for scientific 
study.
    (iv) Each agency acting under this limit on the take prohibitions of 
paragraph (a) of this section is to report to NMFS the numbers of fish 
handled and their status, on an annual basis. A designee of the listed 
entities is any individual the Federal or state fishery agency or other 
co-manager has authorized in writing to perform the listed functions.
    (4) The prohibitions of paragraph (a) of this section relating to 
threatened species of salmonids listed in Sec. 223.102(a) do not apply 
to fishery harvest activities provided that:
    (i) Fisheries are managed in accordance with a NMFS-approved Fishery 
Management and Evaluation Plan (FMEP) and implemented in accordance with 
a letter of concurrence from NMFS. NMFS will approve an FMEP only if it 
clearly defines its intended scope and area of impact and sets forth the 
management objectives and performance indicators for the plan. The plan 
must adequately address the following criteria:
    (A) Define populations within affected listed ESUs, taking into 
account spatial and temporal distribution, genetic and phenotypic 
diversity, and other appropriate identifiably unique biological and life 
history traits. Populations may be aggregated for management purposes 
when dictated by information scarcity, if consistent with survival and 
recovery of the listed ESU. In identifying management units, the plan 
shall describe the reasons for using such units in lieu of population 
units, describe how the management units are defined, given biological 
and life history traits, so as to maximize consideration of the 
important biological diversity contained within the listed ESU, respond 
to the scale and complexity of the ESU, and help ensure consistent 
treatment of listed salmonids across a diverse geographic and 
jurisdictional range.
    (B) Utilize the concepts of ``viable'' and ``critical'' salmonid 
population thresholds, consistent with the concepts contained in the 
technical document entitled ``Viable Salmonid Populations (NMFS, 
2000b).'' The VSP paper provides a framework for identifying the 
biological requirements of listed salmonids, assessing the effects of 
management and conservation actions, and ensuring that such actions 
provide for the survival and recovery of listed species. Proposed 
management actions must recognize the significant differences in risk 
associated with viable and critical population threshold states and 
respond accordingly to minimize the long-term risks to population 
persistence. Harvest actions impacting populations that are functioning 
at or above the viable threshold must be designed to maintain the 
population or

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management unit at or above that level. For populations shown with a 
high degree of confidence to be above critical levels but not yet at 
viable levels, harvest management must not appreciably slow the 
population's achievement of viable function. Harvest actions impacting 
populations that are functioning at or below critical threshold must not 
be allowed to appreciably increase genetic and demographic risks facing 
the population and must be designed to permit the population's 
achievement of viable function, unless the plan demonstrates that the 
likelihood of survival and recovery of the entire ESU in the wild would 
not be appreciably reduced by greater risks to that individual 
population.
    (C) Set escapement objectives or maximum exploitation rates for each 
management unit or population based on its status and on a harvest 
program that assures that those rates or objectives are not exceeded. 
Maximum exploitation rates must not appreciably reduce the likelihood of 
survival and recovery of the ESU. Management of fisheries where 
artificially propagated fish predominate must not compromise the 
management objectives for commingled naturally spawned populations.
    (D) Display a biologically based rationale demonstrating that the 
harvest management strategy will not appreciably reduce the likelihood 
of survival and recovery of the ESU in the wild, over the entire period 
of time the proposed harvest management strategy affects the population, 
including effects reasonably certain to occur after the proposed actions 
cease.
    (E) Include effective monitoring and evaluation programs to assess 
compliance, effectiveness, and parameter validation. At a minimum, 
harvest monitoring programs must collect catch and effort data, 
information on escapements, and information on biological 
characteristics, such as age, fecundity, size and sex data, and 
migration timing.
    (F) Provide for evaluating monitoring data and making any revisions 
of assumptions, management strategies, or objectives that data show are 
needed.
    (G) Provide for effective enforcement and education. Coordination 
among involved jurisdictions is an important element in ensuring 
regulatory effectiveness and coverage.
    (H) Include restrictions on resident and anadromous species 
fisheries that minimize any take of listed species, including time, 
size, gear, and area restrictions.
    (I) Be consistent with plans and conditions established within any 
Federal court proceeding with continuing jurisdiction over tribal 
harvest allocations.
    (ii) The state monitors the amount of take of listed salmonids 
occurring in its fisheries and provides to NMFS on a regular basis, as 
defined in NMFS' letter of concurrence for the FMEP, a report 
summarizing this information, as well as the implementation and 
effectiveness of the FMEP. The state shall provide NMFS with access to 
all data and reports prepared concerning the implementation and 
effectiveness of the FMEP.
    (iii) The state confers with NMFS on its fishing regulation changes 
affecting listed ESUs to ensure consistency with the approved FMEP. 
Prior to approving a new or amended FMEP, NMFS will publish notification 
in the Federal Register announcing its availability for public review 
and comment. Such an announcement will provide for a comment period on 
the draft FMEP of not less than 30 days.
    (iv) NMFS provides written concurrence of the FMEP which specifies 
the implementation and reporting requirements. NMFS' approval of a plan 
shall be a written approval by NMFS Southwest or Northwest Regional 
Administrator, as appropriate. On a regular basis, NMFS will evaluate 
the effectiveness of the program in protecting and achieving a level of 
salmonid productivity commensurate with conservation of the listed 
salmonids. If it is not, NMFS will identify ways in which the program 
needs to be altered or strengthened. If the responsible agency does not 
make changes to respond adequately to the new information, NMFS will 
publish notification in the Federal Register announcing its intention to 
withdraw the limit for activities associated with that FMEP. Such an 
announcement will provide for

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a comment period of not less than 30 days, after which NMFS will make a 
final determination whether to withdraw the limit so that the 
prohibitions would then apply to those fishery harvest activities. A 
template for developing FMEPs is available from NMFS Northwest Region's 
website (www.nwr.noaa.gov).
    (v) The prohibitions of paragraph (a) of this section relating to 
threatened species of steelhead listed in Sec. 223.102 (a)(5) through 
(a)(9), (a)(14), and (a)(15)