[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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[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 50:
Chapter II--National Marine Fisheries Service,
National Oceanic and Atmospheric Administration,
Department of Commerce 3
Chapter III--International Fishing and Related
Activities 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
[[Page iv]]
----------------------------
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
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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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OBSOLETE PROVISIONS
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(c) The incorporating document is drafted and submitted for
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What if the material incorporated by reference cannot be found? If
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[[Page vii]]
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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)
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Part
chapter ii--National Marine Fisheries Service, National
Oceanic and Atmospheric Administration, Department of
Commerce.................................................. 216
chapter iii--International Fishing and Related Activities... 300
chapter iv--Joint Regulations (United States Fish and
Wildlife Service, Department of the Interior and National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce); Endangered
Species Committee Regulations............................. 401
chapter v--Marine Mammal Commission......................... 501
[[Page 3]]
CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND
ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
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SUBCHAPTER A--GENERAL PROVISIONS [RESERVED]
SUBCHAPTER B--NORTH PACIFIC COMMERCIAL FISHERIES [RESERVED]
SUBCHAPTER C--MARINE MAMMALS
Part Page
216 Regulations governing the taking and
importing of marine mammals............. 5
217 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
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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
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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
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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
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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
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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;
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(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,
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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,
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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,
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(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
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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.
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(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'
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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:
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(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
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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
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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
[[Page 111]]
Education, Office of Protected Resources at least 60 days prior to the
expiration of each annual Letter of Authorization. This report must
contain the following information:
(i) Timing and nature of launch operations and monitoring flights;
(ii) A summary of marine mammal behavioral observations in relation
to recorded acoustic stimuli and other known visual or audio stimuli;
(iii) An estimate of the amount and nature of all takes.
(iv) A copy of all videotapes containing sea lion and harbor seal
footage, and selected illustrative 35 mm or digital pictures, cross-
referenced to the appropriate launches and acoustic measurements.
(4) A draft comprehensive technical report will be submitted to the
NMFS Alaska Assistant Regional Administrator for Protected Resources and
to the NMFS Division of Permits, Conservation, and Education, Office of
Protected Resources, 180 days prior to the expiration of these
regulations with full documentation of the methods, results, and
interpretation of all monitoring tasks for launches during all expired
Letters of Authorization, plus preliminary information for launches
during the first 6 months of the final Letter of Authorization.
(5) A revised final comprehensive technical report, including all
monitoring results during the entire period of the Letter of
Authorization, will be due 90 days after the end of the period of
effectiveness of these regulations.
(6) The interim and draft comprehensive technical reports will be
subject to review and comment by the National Marine Fisheries Service.
Any recommendations made by the National Marine Fisheries Service must
be addressed in the final comprehensive technical report prior to
acceptance by the National Marine Fisheries Service.
Sec. 216.235 Letter of Authorization.
(a) A Letter of Authorization, unless suspended or revoked, will be
valid for a period of time specified in the Letter of Authorization, but
a Letter of Authorization may not be valid beyond the effective period
of the regulations.
(b) A Letter of Authorization will set forth:
(1) Species of marine mammals authorized to be taken;
(2) Permissible methods of incidental taking;
(3) Specified geographical region;
(4) Means of effecting the least practicable adverse impact on the
species of marine mammals authorized for taking and its habitat; and
(5) Requirements for monitoring and reporting incidental takes.
(c) Issuance of a Letter of Authorization will be based on a
determination that the number of marine mammals taken by the activity
will be small, and that the total taking by the activity as a whole will
have no more than a negligible impact on the affected species or stocks
of marine mammal(s).
(d) Notice of issuance or denial of a Letter of Authorization will
be published in the Federal Register within 30 days of a determination.
Sec. 216.236 Renewal of a Letter of Authorization.
(a) A Letter of Authorization for the activity identified in Sec.
216.230(a) will be renewed upon:
(1) Notification to the National Marine Fisheries Service that the
activity described in the application for a Letter of Authorization
submitted under Sec. 216.235 will be undertaken and that there will not
be a substantial modification to the described activity, mitigation or
monitoring undertaken during the upcoming season;
(2) Timely receipt of and acceptance by the National Marine
Fisheries Service of the monitoring reports required under Sec.
216.234;
(3) A determination by the National Marine Fisheries Service that
the mitigation, monitoring and reporting measures required under
Sec. Sec. 216.232 and 216.234 and the Letter of Authorization were
undertaken and will be undertaken during the upcoming period of validity
of a renewed Letter of Authorization; and
(4) A determination that the number of marine mammals taken by the
activity will be small and that the total taking by the activity will
have no more than a negligible impact on the affected species or stocks
of marine mammal(s), and that the level of taking will be consistent
with the findings
[[Page 112]]
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
[[Page 113]]
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.
[[Page 121]]
(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.
[[Page 122]]
(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.
[[Page 123]]
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;
[[Page 124]]
(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).
[[Page 125]]
(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
[[Page 126]]
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
[[Page 134]]
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:
[[Page 139]]
(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
[[Page 140]]
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,
[[Page 141]]
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
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(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.
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(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
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(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]
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