50 CFR § 18.1 - 18.152 - Taking, Possession, transportation, Sale, Purchase, Barter, Exportation, and Importation of Wildlife and Plants - Marine Mammals

5 SUBCHAPTER B—TAKING, POSSESSION, TRANSPORTATION, SALE, PURCHASE, BARTER, EXPORTATION, AND IMPORTA TION OF WILDLIFE AND PLANTS (CONTINUED) PART 18—MARINE MAMMALS Subpart A—Introduction Sec. 18.1 Purpose of regulations. 18.2 Scope of regulations. 18.3 Definitions. 18.4 Information collection requirements. Subpart B—Prohibitions 18.11 Prohibited taking. 18.12 Prohibited importation. 18.13 Prohibited uses, possession, transpor tation, and sales. 18.14 Marine mammals taken before the Act. Subpart C—General Exceptions 18.21 Actions permitted by international treaty, convention, or agreement. 18.22 Taking by Federal, State or local gov ernment officials. 18.23 Native exemptions. 18.24 Taking incidental to commercial fish ing operations. 18.25 Exempted marine mammals or marine mammals products. 18.26 Collection of certain dead marine mammal parts. 18.27 Regulations governing small takes of marine mammals incidental to specified activities. Subpart D—Special Exceptions 18.30 Polar bear sport-hunted trophy import permits. 18.31 Scientific research permits and public display permits. 18.32 Waiver of the moratorium. 18.33 Procedures for issuance of permits and modification, suspension, or revocation thereof. 18.34 Guidelines for use in safely deterring polar bears. Subpart E—Depleted Species or Stocks [Reserved] Subpart F—Transfer of Management Authority to States [Note] Subpart G—Notice and Hearing on Section 103 Regulations 18.70 Basis and purpose. 18.71 Definitions. 18.72 Scope of regulations. 18.73 Burden of proof. 18.74 Notice of hearing. 18.75 Notification by interested persons. 18.76 Presiding officer. 18.77 Direct testimony submitted as written documents. 18.78 Mailing address. 18.79 Inspection and copying of documents. 18.80 Ex parte communications. 18.81 Prehearing conference. 18.82 Prehearing order. 18.83 Determination to cancel the hearing. 18.84 Rebuttal testimony and new issues of fact in prehearing order. 18.85 Waiver of right to participate. 18.86 Conduct of the hearing. 18.87 Direct testimony. 18.88 Cross-examination. 18.89 Oral and written arguments. 18.90 Recommended decision, certification of the transcript and submission of com ments on the recommended decision. 18.91 Director’s decision. Subpart H—Waiver of Moratorium on Tak ing and Importation of Individual Ma rine Mammal Species 18.92 Purpose of regulations. 18.93 Scope of regulations. 18.94 Pacific walrus (Alaska). Subpart I [Reserved] Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration, Development, and Pro duction Activities in the Beaufort Sea and Adjacent Northern Coast of Alas ka 18.119 Specified activities covered by this subpart. 18.120 Specified geographic region where this subpart applies. 18.121 Dates this subpart is in effect. 18.122 Procedure to obtain a Letter of Au thorization (LOA). 18.123 How the Service will evaluate a re quest for a Letter of Authorization (LOA). 18.124 Authorized take allowed under a Let ter of Authorization (LOA). 18.125 Prohibited take under a Letter of Au thorization (LOA). 18.126 Mitigation. 18.127 Monitoring. 18.128 Reporting requirements. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00015 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 6 50 CFR Ch. I (10–1–23 Edition) § 18.1 18.129 Information collection requirements. Subpart K—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska 18.130 Specified activities covered by this subpart. 18.131 Specified geographic region where this subpart applies. 18.132 Dates this subpart is in effect. 18.133 Authorized take allowed under a Let ter of Authorization (LOA). 18.134 Procedure to obtain a Letter of Au thorization (LOA). 18.135 How the Service will evaluate a re quest for a Letter of Authorization (LOA). 18.136 Prohibited take under a Letter of Au thorization (LOA). 18.137 Mitigation. 18.138 Monitoring. 18.139 Reporting requirements. 18.140 Measures to reduce impacts to sub sistence users. 18.141 Information collection requirements. Subpart L—Nonlethal Taking of Marine Mammals Incidental to Pile Driving and Marine Construction Activities in the Gulf of Alaska 18.142 Specified activities covered by this subpart. 18.143 Specified geographic region where this subpart applies. 18.144 Dates this subpart is in effect. 18.145 Procedure to obtain a Letter of Au thorization (LOA). 18.146 How the Service will evaluate a re quest for an LOA. 18.147 Authorized take allowed under an LOA. 18.148 Prohibited take under an LOA. 18.149 Mitigation. 18.150 Monitoring. 18.151 Reporting requirements. 18.152 Information collection requirements. AUTHORITY: 16 U.S.C. 1361 et seq. SOURCE: 39 FR 7262, Feb. 25, 1974, unless otherwise noted. Subpart A—Introduction § 18.1 Purpose of regulations. The regulations contained in this part implement the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361– 1407), which among other things, re stricts the taking, possession, trans portation, selling, offering for sale, and importing of marine mammals. § 18.2 Scope of regulations. (a) This part 18 applies solely to ma rine mammals and marine mammal products as defined in § 18.3. For regula tions under the Act with respect to ce tacea (whales and porpoises), pinnipedia, other than walrus (seals and sea lions), see 50 CFR part 216. (b) The provisions in this part are in addition to, and are not in lieu of, other regulations of this subchapter B which may require a permit or pre scribe additional restrictions or condi tions for the importation, exportation, and interstate transportation of wild life. (See also part 13 of this sub chapter.) § 18.3 Definitions. In addition to definitions contained in section 3 of the Act and in part 10 of this subchapter, and unless the context requires otherwise, in this part 18: Act means the Marine Mammal Pro tection Act of 1972, 86 Stat. 1027, 16 U.S.C. 1361–1407; Pub. L. 92–522. Alaskan Native means a person de fined in the Alaska Native Claims Set tlement Act (43 U.S.C. section 1603(b) (85 Stat. 588)) as a citizen of the United States who is of one-fourth degree or more Alaska Indian (including Tsimshian Indians enrolled or not en rolled in the Metlaktla Indian Commu nity), Eskimo, or Aleut blood, or com bination 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 town of which he claims to be a member and whose fa ther or mother is (or, if deceased, was) regarded as Native by any Native vil lage or Native town. Any citizen en rolled by the Secretary 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. Authentic native articles of handicrafts and clothing means items made by an Indian, Aleut, or Eskimo that (a) are composed wholly or in some significant respect of natural materials and (b) are significantly altered from their natural form and are produced, decorated, or VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00016 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 7 U.S. Fish and Wildlife Serv., Interior § 18.3 fashioned in the exercise of traditional native handicrafts without the use of pantographs, multiple carvers, or simi lar mass-copying devices. Improved methods of production utilizing mod ern implements such as sewing ma chines or modern techniques at a tan nery registered pursuant to § 18.23(c) may be used so long as no large-scale mass-production industry results. Tra ditional 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 cooperatives, is permitted so long as no large-scale mass production results. Commercial fishing operation means the lawful harvesting of fish from the marine environment for profit as part of an on-going business enterprise. Such term shall not include sport fish ing activities whether or not carried out by charter boat or otherwise, and whether or not the fish so caught are subsequently sold. Endangered species means a species of marine mammal listed as ‘‘endan gered’’ pursuant to the Endangered Species Act of 1973, 87 Stat. 884, Pub. L. 93–205 (see part 17 of this subchapter). Incidental catch means the taking of a marine mammal (a) because it is di rectly interfering with commercial fishing operations, or (b) as a con sequence of the steps used to secure the fish in connection with commercial fishing operations: Provided, however, That a marine mammal so taken must immediately be returned to the sea with a minimum of injury; and Pro vided, further, That the taking of a ma rine mammal which otherwise meets the requirements of this definition shall not be considered as incidental catch of that mammal if it is used sub sequently to assist in commercial fish ing operations. Marine mammal means any specimen of the following species, whether alive or dead, and any part thereof, includ ing but not limited to, any raw, dressed, or dyed fur or skin: Scientific name Common name Date listed Ursus maritimus ...... Polar bear .............. Dec. 21, 1972. Enhydra lutris .......... Sea otter ................ Do. Odobenus rosmarus Walrus .................... Do. Dugong dugon ......... Dugong .................. Do. Scientific name Common name Date listed Trichechus manatus West Indian man atee. Do. Trichechus inunguis Amazonian man atee. Do. Trichechus senegalensis. West African man atee. Do. Lutra felina .............. Marine otter ............ Mar. 29, 1978. NOTE: Common names given may be at variance with local usage. Native village or town means any com munity, association, tribe, band, clan, or group. Pregnant means pregnant near term. Subsistence means the use by Alaskan Natives 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 for those who de pend upon the taker to provide them with such subsistence. Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any ma rine mammal, including, without limi tation, any of the following: The col lection of dead animals or parts there of; the restraint or detention of a ma rine mammal, no matter how tem porary; tagging a marine mammal; or the negligent or intentional operation of an aircraft or vessel, or the doing of any other negligent or intentional act which results in the disturbing or mo lesting of a marine mammal. 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. Wasteful manner means any taking or method of taking which is likely to re sult in the killing or injuring of marine mammals beyond those needed for sub sistence purposes 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 meth od of taking which is not likely to as sure the capture or killing of a marine mammal, or which is not immediately followed by a reasonable effort to re trieve the marine mammal. [39 FR 7262, Feb. 25, 1974, as amended at 43 FR 13066, Mar. 29, 1978; 55 FR 14978, Apr. 20, 1990; 70 FR 48323, Aug. 17, 2005] VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00017 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 8 50 CFR Ch. I (10–1–23 Edition) § 18.4 § 18.4 Information collection require ments. (a) The Office of Management and Budget under 44 U.S.C. 3501 et seq. has approved the information collection re quirements contained in Subpart D and assigned clearance number 1018–0022. The Service is collecting this informa tion to review and evaluate permit ap plications and make decisions accord ing to criteria established in various Federal wildlife conservation statutes and regulations, on the issuance or de nial of permits. The applicant must re spond to obtain or retain a permit. (b) The Service estimated the public reporting burden for this collection of information to vary from 15 minutes to 4 hours per response, with an average of 1.028 hours per response, including the time for reviewing instructions, searching existing data sources, gath ering and maintaining the data needed, and completing and reviewing the col lection of information. Send comments regarding this burden or any other as pect of this collection of information, including suggestions for reducing the burden, to the Service’s Information Collection Clearance Officer at the ad dress provided at 50 CFR 2.1(b). [62 FR 7329, Feb. 18, 1997, as amended at 79 FR 43965, July 29, 2014] Subpart B—Prohibitions § 18.11 Prohibited taking. Except as otherwise provided in sub part C, D, or H of this part 18, or part 403, it is unlawful for: (a) Any person, vessel, or conveyance subject to the jurisdiction of the United States to take any marine mammal on the high seas, or (b) Any person, vessel, or conveyance to take any marine mammal in waters or on lands under the jurisdiction of the United States. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] § 18.12 Prohibited importation. (a) Except as otherwise provided in subparts C and D of this part 18, it is unlawful for any person to import any marine mammal or marine mammal product into the United States. (b) Regardless of whether an importa tion is otherwise authorized pursuant to subparts C and D of this part 18, it is unlawful for any person to import into the United States any: (1) Marine mammal: (i) Taken in vio lation of the Act, or (ii) Taken in another country in vio lation of 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 of the product is illegal. (c) Except in accordance with an ex ception referred to in subpart C and §§ 18.31 and 18.32 of this part, it is un lawful to import into the United States any: (1) Marine mammal which was preg nant at the time of taking; (2) Marine mammal which was nurs ing at the time of taking, or less than 8 months old, whichever occurs later; (3) Specimen of an endangered or threatened species of marine mam mals; (4) Specimen taken from a depleted species or stock of marine mammals; or (5) Marine mammal taken in an inhu mane 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 per sons subject to the jurisdiction of the United States, whether or not any ma rine mammals were in fact taken inci dent to the catching of the fish. § 18.13 Prohibited uses, possession, transportation, and sales. Except as otherwise provided in the Act or these regulations, it is unlawful for: (a) Any person to use any port, har bor, or other place under the jurisdic tion of the United States for any pur pose in any way connected with a pro hibited taking or any unlawful impor tation of any marine mammal or ma rine mammal products; VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00018 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 9 U.S. Fish and Wildlife Serv., Interior § 18.21 (b) Any person to possess any marine mammal, or product therefrom, taken in violation of the Act or these regula tions; (c) Any person to transport, pur chase, sell, or offer to purchase or sell any marine mammal or marine mam mal product; or (d) Any person subject to the juris diction 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 Act. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] § 18.14 Marine mammals taken before the Act. (a) Section 102(e) of the Act provides in effect that the Act shall not apply to any marine mammal taken prior to De cember 21, 1972, or to any marine mam mal product consisting of, or composed in whole or in part of, any marine mammal taken before such date. Such status may be established by submit ting to the Director prior to, or at the time of importation, an affidavit con taining the following: (1) The Affiant’s name and address; (2) Identification of the Affiant; (3) A description of the marine mam mals 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 Decem ber 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 im portation of under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1407) and regulations promulgated thereunder, and that any false statements may subject me to the criminal penalties of 18 U.S.C. 1001. (b) Either one of two exhibits shall be attached to such affidavit, and will contain either: (1) Records or other available evi dence showing that the product con sists of or is composed in whole or in part of marine mammals taken prior to December 21, 1972. Such records or other evidentiary material must in clude 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 exer cising jurisdiction over marine mam mals that any and all such mammals from which the products sought to be imported were derived were taken prior to December 21, 1972. (c) Service agents, or Customs offi cers, may refuse to clear marine mam mals or marine mammal products for importation into the United States, pursuant to § 14.53 of this subchapter, until the importer can demonstrate, by production of the affidavit referred in above or otherwise, that section 102(e) of the Act applies to all affected items. (d) This section has no application to any marine mammal or marine mam mal product intended to be imported pursuant to § 18.21, § 18.31 or § 18.32 of this part. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] Subpart C—General Exceptions § 18.21 Actions permitted by inter national treaty, convention, or agreement. The Act 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 imple menting the same, relating to the tak ing or importation of marine mammals or marine mammal products, which was existent and in force prior to De cember 21, 1972, and to which the United States was a party. Specifi cally, the regulations in subpart B of this part and the provisions of the Act shall not apply to activities carried out pursuant to the Interim Convention on the Conservation of North Pacific Fur Seals signed in Washington on Feb ruary 9, 1957, and the Fur Seal Act of VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00019 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 10 50 CFR Ch. I (10–1–23 Edition) § 18.22 1966, 16 U.S.C. 1151–1187, as, in each case, from time to time amended. § 18.22 Taking by Federal, State or local government officials. (a) A Federal, State or local govern ment official or employee may take a marine mammal in the course of his duties as an official or employee and no permit shall be required, if such tak ing: (1) Is accomplished in a humane man ner; (2) Is for the protection or welfare of such mammal or from 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 nat ural habitat. In addition, any such offi cial 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 prac ticable under the circumstances shall be taken by any such employee or offi cial to prevent injury or death to the marine mammal as the result of such taking. (b) Each taking permitted under this section should be included in a written report, to be submitted to the Director every six months, beginning December 31, 1973. Unless otherwise permitted by the Director, 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, in cluding in cases where the animal has been retained in captivity, a descrip tion of the place and means of confine ment and the measures taken for its maintenance and care; and (6) Such other information as the Di rector may require. The reports shall be mailed to the Di rector, U.S. Fish and Wildlife Service, U.S. Department of the Interior, Wash ington, DC 20240. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] § 18.23 Native exemptions. (a) Taking. Except as otherwise pro vided in part 403 of this title, any In dian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean may take any marine mammal without a permit, subject to the re strictions contained in this section, if such taking is: (1) For subsistence purposes, or (2) For purposes of creating and sell ing authentic native articles of handi craft and clothing, and (3) In each case, not accomplished in a wasteful manner. (b) Restrictions. (1) ‘‘Except for a transfer to a duly authorized represent ative of the Regional Director of the U.S. Fish and Wildlife Service for sci entific research purposes, 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 com merce, unless: (i) It is being sent by an Alaskan Na tive directly or through a registered agent to a tannery registered under paragraph (c) of this section for the purpose of processing, and will be re turned directly or through a registered agent to the Alaskan Native; or (ii) It is sold or transferred to a reg istered 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) ‘‘Except for a transfer to a duly authorized representative of the Re gional Director of the U.S. Fish and Wildlife Service for scientific research purposes, no marine mammal taken for purposes of creating and selling au thentic 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 reg istered under paragraph (c) of this sec tion for the purpose of processing, and will be returned directly or through a VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00020 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 11 U.S. Fish and Wildlife Serv., Interior § 18.23 registered agent to the Indian, Aleut or Eskimo; or (ii) It is sold or transferred to a reg istered agent for resale or transfer to an Indian, Aleut, or Eskimo; or (iii) It has been first transformed into an authentic Native article of handicraft or clothing; or (iv) It is an edible portion and it is sold (A) in an Alaskan Native village or town or (B) to an Alaskan Native for his consumption. (c) The restriction in paragraph (b) shall not apply to parts or products of the Pacific walrus (Odobenis rosmarus) to the extent that the waiver of the moratorium and the approved State/ Federal regulations relating to the taking and importation of walrus per mits the delivery, sale, transportation or shipment of parts or products of the Pacific walrus in interstate or foreign commerce. (d) Any tannery, or person who wish es to act as an agent, within the juris diction of the United States may apply to the Director for registration as a tannery or an agent which may possess and process marine mammal products for Indians, Aleuts, or Eskimos. The application shall include the following information: (1) The name and address of the ap plicant; (2) A description of the applicant’s procedures for receiving, storing, proc essing, and shipping materials; (3) A proposal for a system of book keeping and/or inventory segregation by which the applicant could maintain accurate records of marine mammals received from Indians, Aleuts, or Eski mos, pursuant to this section; (4) Such other information as the Di rector may request; (5) A certification in the following language: I hereby certify that the foregoing infor mation is complete, true, and correct to the best of my knowledge and belief. I under stand that this information is submitted for the purpose of obtaining the benefit of an ex ception under the Marine Mammal Protec tion Act of 1972 (16 U.S.C. 1361–1407) and regu lations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001. (6) The signature of the applicant. The sufficiency of the application shall be determined by the Director, and in that connection, he may waive any re quirement for information, or require any elaboration or further information deemed necessary. The registration of a tannery or other agent shall be sub ject to the conditions as the Director prescribes, which may include, but are not limited to provisions regarding records, inventory segregation, reports, and inspection. The Director may charge a reasonable fee for such appli cations, including an appropriate ap portionment of overhead and adminis trative expenses of the Department of Interior. (e) Notwithstanding the preceding provisions of this section, whenever, under the Act, the Secretary deter mines any species or stock of marine mammals to be depleted, he may pre scribe regulations pursuant to section 103 of the Act upon the taking of such marine mammals by any Indian, Aleut, or Eskimo and, after promulgation of such regulations, all takings of such marine mammals by such person shall conform to such regulations. (f) Marking, tagging, and reporting. (1) In addition to definitions contained in the Act, 50 CFR 18.3, and 50 CFR 18.27, in this paragraph (f): (i) The term ‘‘marking and tagging’’ of marine mammals as specified in sec tion 109(i) of the Act refers to the ac tual physical attachment of an ap proved band or other such marking de vice or technique to the raw or unhandicrafted (including unmarked tanned skins) skin and skull of polar bears, the tusks of walruses, and the skin and skull of sea otters; and (ii) The term ‘‘reporting’’ means the collection by Service personnel or the Service’s authorized local representa tives of biological data, harvest data, and other information regarding the ef fect of taking of marine mammals on populations, the collection of which the Service determines to be necessary for management purposes. Reporting will be done on forms provided by the Service upon presentation for marking, tagging, and reporting purposes of the marine mammal(s) or specified raw or unhandicrafted parts thereof. (2) Notwithstanding the preceding provisions of this section, but subject VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00021 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 12 50 CFR Ch. I (10–1–23 Edition) § 18.23 to the provisions and conditions con tained in this paragraph, no polar bear, walrus, or sea otter, or any parts there of, taken or collected by an Alaskan Native for subsistence purposes or for purposes of creating and selling au thentic Native articles of handicrafts and clothing may be possessed, trans ported within, or exported from Alaska unless the animal(s), or specified parts thereof, have been reported to, and properly marked and tagged by, Serv ice personnel or the Service’s author ized local representative; except: (i) An Alaskan Native that harvested or participated in the harvest of a polar bear, sea otter, or walrus and who possesses the animal, or any parts thereof, may possess the unmarked, untagged, and unreported animal(s), or parts thereof, for a period of time not to exceed 30 days from the time of tak ing for the purpose of transporting the specified parts to Service personnel or the Service’s local authorized rep resentative for marking, tagging, and reporting; (ii) Alaskan Natives and registered agents/tanneries may possess the speci fied unmarked or untagged raw, unhandicrafted, or tanned parts thereof for a period of time not to exceed 180 days from the effective date of this rulemaking for the purpose of trans porting to Service personnel or the Service’s local authorized representa tive for marking and tagging if the specified parts thereof were taken or possessed between December 21, 1972, and the effective date of this regula tion. There is no reporting requirement for marine mammals, or specified parts thereof, covered by this paragraph. (3) Those unmarked, untagged, and unreported specified parts of polar bear, walrus, and sea otter, that must be presented to Service personnel or an authorized Service representative for marking, tagging, and reporting are as follows: (i) Polar bear—skin and skull. (ii) Walrus—tusks. (iii) Sea otter—skin and skull. (4) The locations where Service per sonnel or the Service’s authorized local representative will be available for marking, tagging, and reporting pur poses will be announced annually by the Alaska Regional Director. Local persons authorized to act as represent atives for marking, tagging, and re porting purposes in the absence of Service personnel will also be an nounced annually by the Alaska Re gional Director. (5) Marks and tags will be attached or applied to the skins, skulls, and tusks of the marine mammal(s) in such a manner as to maximize their lon gevity and minimize their adverse ef fects to the appearance of the specified parts that might result due to hin dering the tanning or handicrafting of skins, or the handicrafting of tusks or skulls. If the tag or mark comes off of the specified part the person in posses sion of the part shall have 30 days to present the part and broken tag or other marking device to the Service or the Service’s authorized local rep resentative for remarking or retagging purposes. (6) Marks and tags for skins, skulls, and tusks will be provided by the Serv ice. They will be numbered for ac countability and of such design, con struction, and material so as to maxi mize their durability and longevity on the specified parts. (7) Data collected pursuant to this paragraph will be reported on forms provided by the Service and main tained in the Service’s Regional Office, Anchorage, Alaska. The Service will summarize the data annually and make it publicly available. The data will also be included in the Service’s annual re port to Congress as set forth in section 103(f) of the Act. (8) All items of research (e.g., radio collars, satellite transmitters, tags, etc.) that were attached to animals taken by Alaskan Natives must be re turned to Service personnel or an au thorized Service representative at the time the animal, or specified unhandicrafted parts thereof, are pre sented for marking, tagging, and re porting. No penalty will be imposed under the Act for a violation of this paragraph. However, penalties may be sought by the Service under other ap plicable Federal laws governing the possession and use of Federal property. (9) Pursuant to this paragraph (f), the following specific conditions and provi sions apply: VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00022 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 13 U.S. Fish and Wildlife Serv., Interior ยง 18.23 (i) Marking, tagging, and reporting of polar bears or specified parts thereof. (A) The skin and skull of an animal must accompany each other when pre sented for marking, tagging, and re porting except that the skin and skull of an animal need not be presented to gether for marking and tagging pur poses if taken between December 21, 1972, and the effective date of this regu lation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alas kan Natives when presenting polar bears, or specified parts thereof, for marking and tagging: sex of animal, date of kill, and location of kill. (C) Both the skin and the skull will be marked and tagged and a rudi mentary pre-molar tooth may be re moved from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, ei ther attached to, or accompanying the skin. (D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, penal sheath or baculum, must be visible. (E) Marks and tags must remain af fixed to the skin through the tanning process and until the skin has been sev ered into parts for crafting into handi crafts or for as long as is practical dur ing the handicrafting process. (ii) Marking, tagging, and reporting of walrus or specified parts thereof. (A) The paired tusks of the animal(s) must, to the maximum extent prac tical, accompany each other when pre sented for marking, tagging, and re porting purposes, except that paired tusks need not be presented together for marking and tagging purposes if taken between December 21, 1972, and the effective date of this regulation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alas kan Natives when presenting walrus, or specified parts thereof, for marking and tagging: date of take, sex of ani mal, whether live-killed, floating-dead, or beach-found, and location of the take or location of animal if found floating and dead or beach-found. (C) Marks and/or tags must remain affixed to the tusks until they have been crafted into a handicraft or for as long as is practical during the handi crafting process. (iii) Marking, tagging, and reporting of sea otter or specified parts thereof. (A) The skin and skull of an animal must accompany each other when pre sented for marking, tagging, and re porting, except that the skin and skull of an animal need not be presented to gether if taken between December 21, 1972, and the effective date of this regu lation. (B) Except as provided in paragraph (f)(2)(ii) of this section, the following information must be reported by Alas kan Natives when presenting sea ot ters, or specified parts thereof, for marking and tagging: date of kill, sex of animal, and location of kill. (C) Both the skin and skull will be marked and tagged and a rudimentary pre-molar tooth may be removed from the skull and retained by the Service. The skin must have the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, either attached to, or accompanying the skin. (D) The skull must be skinned out and the skin may be frozen or unfrozen when presented for marking, tagging, and reporting. If the skin is frozen, the sex identifiers, such as vaginal orifice, teats, or penal sheath or baculum, must be visible. (E) Marks and tags must remain af fixed to the skin through the tanning process and until the skin has been sev ered into parts for crafting into handi crafts or for as long as is practical dur ing the handicrafting process. (10) No person may falsify any infor mation required to be set forth on the reporting form when the marine mam mal(s), or specified parts thereof, are presented as required by these regula tions. (11) Possession by any person of ma rine mammal(s), or any parts thereof, in violation of the provisions and con ditions of this ยง 18.23(f) is subject to punishment under the penalties pro vided for in section 105(a)(1) of the Act. (12) The information collection re quirements contained in this ยง 18.23(f) VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00023 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 14 50 CFR Ch. I (10–1–23 Edition) § 18.24 have been approved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and assigned clear ance number 1018–0066. The information is mandatory in order to have the ma rine mammal parts ‘‘marked and tagged,’’ and thereby made eligible for continued lawful possession. Non-re sponse may result in the Service deter mining the wildlife to be illegally pos sessed and subject the individual to penalties under this title. [39 FR 7262, Feb. 25, 1974, as amended at 40 FR 59444, Dec. 24, 1975; 45 FR 54057, Aug. 14, 1980; 51 FR 17981, May 16, 1986; 53 FR 24283, June 28, 1988] § 18.24 Taking incidental to commer cial fishing operations. Persons may take marine mammals incidental to commercial fishing oper ations until October 21, 1974: Provided, That such taking is by means of equip ment and techniques prescribed in reg ulations issued by the Secretary of Commerce. However, any marine mam mal taken as an incidental catch may not be retained. It shall be the imme diate goal that the incidental kill or incidental serious injury of marine mammals permitted in the course of commercial fishing operations be re duced to insignificant levels approach ing a zero mortality and serious injury rate. § 18.25 Exempted marine mammals or marine mammal products. (a) The provisions of the Act and these regulations shall not apply: (1) To any marine mammal taken be fore December 21, 1972, or (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 § 18.12(c) (3) and (4) shall not apply to marine mammals or marine mammal products imported into the United States before the date on which notice is published in the FEDERAL REGISTER of the proposed rulemaking with re spect to the designation of the species of stock concerned as depleted or en dangered: (c) Section 18.12(b) shall not apply to articles imported into the United States before the effective date of the foreign law making the taking or sale, as the case may be, of such marine mammals or marine mammal products unlawful. § 18.26 Collection of certain dead ma rine mammal parts. (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) Marine mammal parts so col lected may be retained if registered within 30 days with an agent of the Na tional Marine Fisheries Service, or an agent of the U.S. Fish and Wildlife Service. (c) Registration shall include (1) the name of the owner, (2) a description of the article to be registered and (3) the date and location of collection. (d) Title to any marine mammal parts collected under this section is not transferable, unless consented to in writing by the agent referred to in paragraph (b) of this section. [39 FR 7262, Feb. 25, 1974, as amended at 51 FR 17981, May 16, 1986] § 18.27 Regulations governing small takes of marine mammals inci dental to specified activities. (a) Purpose of regulations. The regula tions in this section implement Sec tion 101(a)(5) 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, during periods of not more than five consecutive years each, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified ac tivity (other than commercial fishing) within a specified geographical region. (b) Scope of regulations. The taking of small numbers of marine mammals under section 101(a)(5) of the Marine Mammal Protection Act may be al lowed only if the Director of the Fish and Wildlife Service (1) finds, based on the best scientific evidence available, that the total taking during the speci fied time period will have a negligible impact on the species or stock and will not have an unmitigable adverse im pact on the availability of the species VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00024 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 15 U.S. Fish and Wildlife Serv., Interior § 18.27 or stock for subsistence uses; (2) pre scribes regulations setting forth per missible methods of taking and other means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses, paying particular attention to rookeries, mat ing grounds, and areas of similar sig nificance; and (3) prescribes regula tions pertaining to the monitoring and reporting of such taking. NOTE: The information collection require ment contained in this § 18.27 has been ap proved by the Office of Management and Budget under 44 U.S.C. 3501 et seq. and as signed clearance No. 1018–0070. The informa tion is being collected to describe the activ ity proposed and estimate the cumulative impacts of potential takings by all persons conducting the activity. The information will be used to evaluate the application and determine whether to issue Specific Regula tions and, subsequently, Letters of Author ization. Response is required to obtain a ben efit. The public reporting burden from this re quirement is estimated to vary from 2 to 200 hours per response with an average of 10 hours per response including time for review ing instructions, gathering and maintaining data, and completing and reviewing applica tions for specific regulations and Letters of Authorization. Direct comments regarding the burden estimate or any other aspect of this requirement to the Service’s Informa tion Collection Clearance Officer at the ad dress provided at 50 CFR 2.1(b). (c) Definitions. In addition to defini tions contained in the Act and in 50 CFR 18.3 and unless the context other wise requires, in this section: 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 section. Incidental, but not intentional, taking means takings which are infrequent, unavoidable, or accidental. It does not mean that the taking must be unex pected. (Complete definition of take is contained in 50 CFR 18.3.) Negligible impact is an impact result ing from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through ef fects 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, which takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals. The specified activity and specified geographical region should be identified so that the anticipated ef fects on marine mammals will be sub stantially similar. Specified geographical region means an area within which a specified activity is conducted and which has similar bio geographic characteristics. Unmitigable adverse impact means an impact resulting from the specified ac tivity (1) that is likely to reduce the availability of the species to a level in sufficient for a harvest to meet subsist ence needs by (i) causing the marine mammals to abandon or avoid hunting areas, (ii) directly displacing subsist ence users, or (iii) placing physical bar riers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the avail ability of marine mammals to allow subsistence needs to be met. (d) Submission of requests. (1) In order for the Fish and Wildlife Service to consider allowing the taking by U.S citizens of small numbers of marine mammals incidental to a specified ac tivity, a written request must be sub mitted to the Director, U.S. Fish and Wildlife Service, Department of the In terior, Washington, DC 20240. Requests shall include the following information on the activity as a whole, which in cludes, but is not limited to, an assess ment of total impacts by all persons conducting the activity: (i) A description of the specific activ ity or class of activities that can be ex pected to result in incidental taking of marine mammals; (ii) The dates and duration of such activity and the specific geographical region where it will occur; VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00025 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 16 50 CFR Ch. I (10–1–23 Edition) § 18.27 (iii) Based upon the best available scientific information; (A) An estimate of the species and numbers of marine mammals likely to be taken by age, sex, and reproductive conditions, and the type of taking (e.g., disturbance by sound, injury or death resulting from collision, etc.) and the number of times such taking is likely to occur; (B) A description of the status, dis tribution, and seasonal distribution (when applicable) of the affected spe cies or stocks likely to be affected by such activities; (C) The anticipated impact of the ac tivity upon the species or stocks; (D) The anticipated impact of the ac tivity on the availability of the species or stocks for subsistence uses; (iv) The anticipated impact of the ac tivity upon the habitat of the marine mammal populations and the likeli hood of restoration of the affected habitat; (v) The anticipated impact of the loss or modification of the habitat on the marine mammal population involved; (vi) The availability and feasibility (economic and technological) of equip ment, methods, and manner of con ducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and, where rel evant, on their availability for subsist ence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance. (The ap plicant and those conducting the speci fied activity and the affected subsist ence users are encouraged to develop mutually agreeable mitigating meas ures that will meet the needs of sub sistence users.); (vii) Suggested means of accom plishing the necessary monitoring and reporting which will result in increased knowledge of the species through an analysis of the level of taking or im pacts and suggested means of mini mizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity; and (viii) Suggested means of learning of, encouraging, and coordinating research opportunities, plans and activities re lating to reducing such incidental tak ing from such specified activities, and evaluating its effects. (2) The Director shall determine the adequacy and completeness of a re quest, and if found to be adequate, will invite information, suggestions, and comments on the preliminary finding of negligible impact and on the pro posed specific regulations through no tice in the FEDERAL REGISTER, news papers of general circulation, and ap propriate electronic media in the coastal areas that may be affected by such activity. All information and sug gestions will be considered by the Fish and Wildlife Service in developing final findings and effective specific regula tions. (3) The Director shall evaluate each request to determine, based on the best available scientific evidence, whether the total taking 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 Director finds that mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that requirement, the Director may make a finding of negligible im pact subject to such mitigating meas ures being successfully implemented. Any preliminary findings of ‘‘negligible impact’’ and ‘‘no unmitigable adverse impact’’ shall be proposed for public comment along with the proposed spe cific regulations. (4) If the Director cannot make a finding that the total taking will have a negligible impact in the species or stock or will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Director shall publish in the FEDERAL REGISTER the negative finding along with the basis for denying the re quest. (e) Specific regulations. (1) Specific regulations will be established for each allowed activity which set forth (i) per missible methods of taking, (ii) means of effecting the least practicable ad verse impact on the species and its habitat and on the availability of the species for subsistence uses, and (iii) requirements for monitoring and re porting. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00026 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 17 U.S. Fish and Wildlife Serv., Interior § 18.30 (2) Regulations will be established based on the best available scientific information. As new information is de veloped, through monitoring, report ing, or research, the regulations may be modified, in whole or part, after no tice and opportunity for public review. (f) Letters of Authorization. (1) A Let ter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities pursuant to any specific regulations established. Re quests for Letters of Authorization shall be submitted to the Director, U.S. Fish and Wildlife Service, Department of the Interior, Washington, DC 20240. The information to be submitted in a request may be obtained by writing the Director. Once specific regulations are effective, the Service will to the max imum extent possible, process subse quent applications for Letters of Au thorization within 30 days after receipt of the application by the Service. (2) Issuance of a Letter of Authoriza tion will be based on a determination that the level of taking will be con sistent with the findings made for the total taking allowable under the spe cific regulations. (3) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within 30 days of issuance. (4) Letters of Authorization will specify the period of validity and any additional terms and conditions appro priate for the specific request. (5) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appro priate, if, after notice and opportunity for public comment, the Director de termines: (i) The regulations pre scribed are not being substantially complied with, or (ii) the taking al lowed 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. (6) The requirement for notice and opportunity for public review in para graph (f)(5) of this section shall not apply if the Director determines that an emergency exists which poses a sig nificant risk to the well-being of the species or stocks of marine mammals concerned. (7) A violation of any of the terms and conditions of a Letter of Author ization or of the specific regulations may subject the Holder and/or any in dividual who is operating under the au thority of the Holder’s Letter of Au thorization to penalties provided in the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361–1407). [48 FR 31225, July 7, 1983, as amended at 54 FR 40348, Sept. 29, 1989; 55 FR 28765, July 13, 1990; 56 FR 27463, June 14, 1991; 79 FR 43965, July 29, 2014] Subpart D—Special Exceptions § 18.30 Polar bear sport-hunted trophy import permits. (a) Application procedure. You, as the hunter or heir of the hunter’s estate, must submit an application for a per mit to import a trophy of a polar bear taken in Canada to the Division of Management Authority at the address provided at 50 CFR 2.1(b). You must use an official application (Form 3–200) provided by the Service and must in clude as an attachment all of the fol lowing additional information: (1) Certification that: (i) You or the deceased hunter took the polar bear as a personal sport-hunt ed trophy; (ii) You will use the trophy only for personal display purposes; (iii) The polar bear was not a preg nant female, a female with dependent nursing cub(s) or a nursing cub (such as in a family group), or a bear in a den or constructing a den when you took it; and (iv) For a polar bear taken after April 30, 1994, you made sure the gall bladder and its contents were de stroyed; (2) Name and address of the person in the United States receiving the polar bear trophy if other than yourself; (3) For a polar bear received as an in heritance, documentation to show that you are the legal heir of the decedent who took the trophy; (4) Proof that you or the decedent le gally harvested the polar bear in Can ada as shown by one of the following: VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00027 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 18 50 CFR Ch. I (10–1–23 Edition) § 18.30 (i) A copy of the Northwest Terri tories (NWT) or Nunavut Territory hunting license and tag number; (ii) A copy of the Canadian CITES ex port permit that identifies the polar bear by hunting license and tag num ber; (iii) A copy of the NWT or Nunavut Territory export permit; or (iv) A certification from the Depart ment of Resources, Wildlife, and Eco nomic Development, Northwest Terri tories, or the Department of Sustain able Development, Nunavut Territory, that you or the decedent legally har vested the polar bear, giving the tag number, location (settlement and pop ulation), and season you or the dece dent took the bear; (5) An itemized description of the polar bear parts you wish to import, in cluding size and the sex of the polar bear; (6) The month and year the polar bear was sport hunted; (7) The location (nearest settlement or community) where the bear was sport hunted; (8) For a female bear or a bear of un known sex that was taken before Janu ary 1, 1986, documentary evidence that the bear was not pregnant at the time of take, including, but not limited to, documentation, such as a hunting li cense or travel itinerary, that shows the bear was not taken in October, No vember, or December or that shows that the location of the hunt did not include an area that supported mater nity dens; and (9) For a female bear, bear of un known sex, or male bear that is less than 6 feet in length (from tip of nose to the base of the tail) that was taken prior to the 1996/97 NWT polar bear har vest season, available documentation to show that the bear was not nursing, including, but not limited to, docu mentation, such as a certification from the NWT, that the bear was not taken while part of a family group. (b) Definitions. In addition to the defi nitions in this paragraph, the defini tions in 50 CFR 10.12, 18.3, and 23.3 apply to this section. (1) Sport-hunted trophy means a mount, rug or other display item com posed of the hide, hair, skull, teeth, baculum, bones, and claws of the speci men which was taken by the applicant or decedent during a sport hunt for per sonal, noncommercial use and does not include any internal organ of the ani mal, including the gall bladder. Arti cles made from the specimen, such as finished or unfinished, worked, manu factured, or handicraft items for use as clothing, curio, ornamentation, jew elry, or as a utilitarian item are not considered trophy items. (2) Management agreement means a written agreement between parties that share management responsibil ities for a polar bear population which describes what portion of the harvest able quota will be allocated to each party and other measures which may be taken for the conservation of the population, such as harvest seasons, sex ratio of the harvest, and protection of females and cubs. (c) Procedures for issuance of permits and modification, suspension or revoca tion of permits. We, the Service, shall suspend, modify or revoke permits issued under this section: (1) In accordance with regulations contained in § 18.33; and (2) If, in consultation with the appro priate authority in Canada, we deter mine that the sustainability of Can ada’s polar bear populations is being adversely affected or that sport hunt ing may be having a detrimental effect on maintaining polar bear populations throughout their range. (d) Issuance criteria. In deciding whether to issue an import permit for a sport-hunted trophy, we must deter mine in addition to the general criteria in part 13 of this subchapter whether: (1) You previously imported the spec imen into the United States without a permit; (2) The specimen meets the definition of a sport-hunted trophy in paragraph (b) of this section; (3) You legally harvested the polar bear in Canada; (4) Canada has a monitored and en forced sport-hunting program con sistent with the purposes of the 1973 International Agreement on the Con servation of Polar Bears; (5) Canada has a sport-hunting pro gram, based on scientifically sound quotas, ensuring the maintenance of VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00028 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 19 U.S. Fish and Wildlife Serv., Interior § 18.30 the affected population at a sustain able level; and (6) The export and subsequent im port: (i) Are consistent with the provisions of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and other international agreements and conven tions; and (ii) Are not likely to contribute to il legal trade in bear parts, including for bears taken after April 30, 1994, that the gall bladder and its contents were destroyed. (e) Additional permit conditions. Your permit to import a sport-hunted trophy of a polar bear taken in Canada is sub ject to the permit conditions outlined in § 18.31(d) and the following addi tional permit conditions: (1) You, the permittee, may not im port internal organs of the polar bear, including the gall bladder; (2) After import you may not alter or use the trophy in a manner incon sistent with the definition of a sport hunted polar bear trophy as given in § 18.30(b); (3) You may not import a sport-hunt ed trophy if the polar bear at the time you or the decedent took it was: (i) A nursing bear or a female with nursing young (i.e., part of a family group); (ii) A pregnant female; or (iii) A bear moving into a den or in a den; (4) You must present to Service per sonnel at the time of import a valid CITES document from the country of export or re-export; (5) You must comply with the fol lowing import procedures: (i) Import the sport-hunted trophy through a designated port for wildlife imports (see § 14.12 of this subchapter) during regular business hours, except for full mount trophies that have been granted an exception to designated port permit requirements under § 14.32 of this subchapter; (ii) Not send the trophy through the international mail; and (iii) Notify Service personnel at the port at least 48 hours before the import (see § 14.54 of this subchapter) and make arrangements for Service per sonnel to affix a tag in accordance with paragraph (e)(7) of this section prior to being cleared (see § 14.52 of this sub chapter); (6) You must import all parts of a single trophy at the same time; (7) The following tagging/marking procedures apply: (i) Service personnel must affix a per manently locking tag that contains a unique serial number and the common name ‘‘polar bear’’ to the hide which must remain fixed indefinitely to the hide as proof of legal import; and (ii) Service personnel must perma nently mark upon import the parts of the trophy other than the hide, such as the skull and bones, with the hide tag number; and (8) If the tag comes off the hide, you must within 30 days: (i) Contact the nearest Service office at a designated port or a Law Enforce ment office as given in § 10.22 of this subchapter to schedule a time to present the trophy for retagging; (ii) Provide as proof that the trophy had been tagged and legally imported a copy of the: (A) Canceled CITES export permit or re-export certificate; (B) Canceled U.S. import permit issued under this section; or (C) Cleared wildlife declaration form (3–177); and (iii) Present either the broken tag, or if the tag was lost, a signed written ex planation of how and when the tag was lost. (f) Duration of permits. The permit will be valid for no more than one year from the date of issuance. (g) Fees. (1) You must pay the stand ard permit processing fee as given in § 13.11(4) when filing an application. (2) You must pay the issuance fee of $1,000 when we notify you the applica tion is approved. We cannot issue an import permit until you pay this fee. We will use the issuance fee to develop and implement cooperative research and management programs for the con servation of polar bears in Alaska and Russia under section 113(d) of the Ma rine Mammal Protection Act. (h) Scientific review. (1) We will under take a scientific review of the impact of permits issued under this section on the polar bear populations in Canada within 2 years of March 20, 1997. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00029 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 20 50 CFR Ch. I (10–1–23 Edition) § 18.31 (i) The review will provide an oppor tunity for public comment and include a response to the public comment in the final report; and (ii) We will not issue permits under this section if we determine, based upon scientific review, that the issuance of permits under this section is having a significant adverse impact on the polar bear populations in Can ada; and (2) After the initial review, we may review whether the issuance of permits under this section is having a signifi cant adverse impact on the polar bear populations in Canada annually in light of the best scientific information available. The review must be com pleted no later than January 31 in any year a review is undertaken. (i) Findings. Polar bear sport-hunted trophies may only be imported after issuance of an import permit, and in accordance with the following findings and conditions: (1) We have determined that the Northwest Territories and Nunavut Territory, Canada, have a monitored and enforced sport-hunting program that meets issuance criteria of para graphs (d) (4) and (5) of this section for the following populations: Southern Beaufort Sea, Northern Beaufort Sea, Viscount Melville Sound (subject to the lifting of the moratorium in this population), Western Hudson Bay, M’Clintock Channel (only for polar bears lawfully taken on or before May 31, 2000), Lancaster Sound, and Nor wegian Bay, and that: (i) For the Southern Beaufort Sea population, no bears are taken west of the equidistant line of the Beaufort Sea; (ii) For all populations, females with cubs, cubs, or polar bears moving into denning areas or already in dens are protected from taking by hunting ac tivities; and (iii) For all populations, management agreements among all management en tities with scientifically sound quotas are in place; and (2) Any sport-hunted trophy taken in the Northwest Territories, Canada, be tween December 21, 1972, and April 30, 1994, may be issued an import permit when: (i) From an approved population list ed in paragraph (i)(1); and (ii) The issuance criteria of para graph (d) (1), (2), (3), and (6) of this sec tion are met. [62 FR 7329, Feb. 18, 1997, as amended at 64 FR 1539, Jan. 11, 1999; 66 FR 1907, Jan. 10, 2001; 66 FR 50851, Oct. 5, 2001; 79 FR 43965, July 29, 2014] § 18.31 Scientific research permits and public display permits. The Director may, upon receipt of an application and in accordance with the issuance criteria of this section, issue a permit authorizing the taking and im portation of marine mammals for sci entific research purposes or for public display. (a) Application procedure. Applica tions for permits to take and import marine mammals for scientific re search purposes or for public display shall be submitted to the Director. Each such application must contain the general information and certifi cation required by § 13.12(a) of this sub chapter plus the following additional information: (1) A statement of the purpose, date, location and manner of the taking or importation; (2) A description of the marine mam mal or the marine mammal products to be taken or imported, including the species or subspecies involved; the pop ulation stock, when known, the num ber of specimens or products (or the weight thereof, where appropriate); and the anticipated age, size, sex, and con dition (i.e., whether pregnant or nurs ing) of the animals involved; (3) If the marine mammal is to be taken and transported alive, a com plete description of the manner of transportation, care and maintenance, including the type, size, and construc tion of the container or artificial envi ronment; arrangements for feeding and sanitation; a statement of the appli cant’s qualifications and previous expe rience in caring for and handling cap tive marine mammals and a like state ment as to the qualifications of any common carrier or agent to be em ployed to transport the animal; and a written certification of a licensed vet erinarian knowledgeable in the field of VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00030 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 21 U.S. Fish and Wildlife Serv., Interior § 18.31 marine mammals that he has person ally reviewed the arrangements for transporting and maintaining the ani mals and that in his opinion they are adequate to provide for the well-being of the animal; (4) If the application is for a sci entific research permit, a detailed de scription of the scientific research project or program in which the marine mammal or marine mammal product is to be used including a copy of the re search proposal relating to such pro gram or project and the names and ad dresses of the sponsor or cooperating institution and the scientists involved; (5) If the application is for a sci entific research permit, and if the ma rine mammal proposed to be taken or imported is listed as an endangered or threatened species or has been des ignated by the Secretary as depleted, a detailed justification of the need for such a marine mammal, including a discussion of possible alternatives, whether or not under the control of the applicant; and (6) If the application is for a public display permit, a detailed description of the proposed use to which the ma rine mammal or marine mammal prod uct is to be put, including the manner, location, and times of display, whether such display is for profit, an estimate of the numbers and types of persons who it is anticipated will benefit for such display, and whether and to what extent the display is connected with educational or scientific programs. There shall also be included a complete description of the enterprise seeking the display permit and its educational, and scientific qualifications, if any. (b) Review by Marine Mammal Commis sion. Upon receipt of an application the Director shall forward the application to the Marine Mammal Commission to gether with a request for the rec ommendations of the Commission and the Committee of Scientific Advisors on Marine Mammals. In order to com ply with the time limits provided in these regulations, the Director shall request that such recommendation be submitted within 30 days of receipt of the application by the Commission. If the Commission or the Committee, as the case may be, does not respond within 30 days from the receipt of such application by the Commission, the Di rector shall advise the Commission in writing that failure to respond within 45 days from original receipt of the ap plication (or such longer time as the Director may establish) shall be con sidered as a recommendation from the Commission and the Committee that the permit be issued. The Director may also consult with any other person, in stitution or agency concerning the ap plication. (c) Issuance criteria. Permits applied for under this section shall be issued, suspended, modified and revoked pur suant to regulations contained in § 18.33. In determining whether to issue a scientific research permit, the Direc tor shall consider whether the proposed taking or importation will be con sistent with the policies and purposes of the Act; and whether the granting of the permit is required to further a bona fide and necessary or desirable sci entific purpose, taking into account the benefits anticipated to be derived from the scientific research con templated and the effect of the purposed taking or importation on the population stock and the marine eco system. In determining whether to issue a public display permit, the Di rector shall consider whether the pro posed taking or importation will be consistent with the policies and pur poses of the Act; whether a substantial public benefit will be gained from the display contemplated, taking into ac count the manner of the display and the anticipated audience on the one hand, and the effect of the proposed taking or importation on the popu lation stocks of the marine mammal in question and the marine ecosystem on the other; and the applicant’s quali fications for the proper care and main tenance of the marine mammal or the marine mammal product, and the ade quacy of his facilities. (d) Additional permit conditions. In ad dition to the general conditions set forth in part 13 of this subchapter B, permits issued under this section shall be subject to the following conditions: (1) Any permit issued under these regulations must be in the possession of the person to whom it is issued (or an agent of such person) during: VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00031 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 22 50 CFR Ch. I (10–1–23 Edition) § 18.32 (i) The time of the authorized taking or importation; (ii) The period of any transit of such person or agent which is incidental to such taking or importation; and (iii) Any other time while any marine mammal taken or imported under such permit is in the possession of such per son or agent. (2) A duplicate copy of the issued per mit must be physically attached to the container, package, enclosure, or other means of containment, in which the marine mammal is placed for purposes of storage, transit, supervision, or care. (e) Tenure of permits. The tenure of permits for scientific research or pub lic display shall be designated on the face of the permit. § 18.32 Waiver of the moratorium. See subpart F (Waiver of the morato rium; State laws and regulations) and subpart G (Notice and Hearing on sec tion 103 Regulations) for procedures re garding waivers of the moratorium in those circumstances where a state pro vides an acceptable management pro gram for a species or population stock within its jurisdiction. [40 FR 59442, Dec. 24, 1975] § 18.33 Procedures for issuance of per mits and modification, suspension, or revocation thereof. (a) Whenever application for a permit is received by the director which the director deems sufficient, he shall, as soon as practicable, publish a notice thereof in the FEDERAL REGISTER. Such notice shall set forth a summary of the information contained in such applica tion. Any interested party may, within 30 days after the date of publication of such notice, submit to the director his written data or views with respect to the taking or importation proposed in such application and may request a hearing in connection with the action to be taken thereon. (b) If the request for a hearing is made within the 30-day period referred to in paragraph (a) of this section, or if the director determines that a hearing would otherwise be advisable, the di rector may, within 60 days after the date of publication of the notice re ferred to in paragraph (a) of this sec tion, afford to such requesting party or parties an opportunity for a hearing. Such hearing shall also be open to par ticipation by any interested members of the public. Notice of the date, time, and place of such hearing shall be pub lished in the FEDERAL REGISTER not less than 15 days in advance of such hearing. Any interested person may ap pear in person or through representa tives at the hearing and may submit any relevant material, data, views, comments, arguments, or exhibits. A summary record of the hearing shall be kept. (c) As soon as practicable but not later than 30 days after the close of the hearing (or if no hearing is held, as soon as practicable after the end of the 30 days succeeding publication of the notice referred to in paragraph (a) of this section the director shall issue or deny issuance of the permit. Notice of the decision of the director shall be published in the FEDERAL REGISTER within 10 days after the date of such issuance or denial. Such notice shall include the date of the issuance or de nial and indicate where copies of the permit, if issued, may be obtained. (d) Any permit shall be subject to modification, suspension, or revocation by the director in whole or in part in accordance with these regulations and the terms of such permits. The per mittee shall be given written notice by registered mail, return receipt re quested, of any proposed modification, suspension, or revocation. Such notice shall specify: (1) The action proposed to be taken along with a summary of the reasons therefor; (2) In accordance with 5 U.S.C. 558, the steps which the permittee may take to demonstrate or achieve compli ance with all lawful requirements; and (3) That the permittee is entitled to a hearing thereon if a written request for such a hearing is received by the Direc tor within 10 days after receipt of the aforesaid notice or such other later date as may be specified in the notice to the permittee. The time and place of the hearing, if requested by the per mittee, shall be determined by the di rector and a written notice thereof given to the permittee by registered mail, return receipt requested, not less VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00032 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 23 U.S. Fish and Wildlife Serv., Interior § 18.34 than 15 days prior to the date of hear ing specified. The director may, in his discretion, allow participation at the hearing by interested members of the public. The permittee and other parties participating may submit all relevant material, data, views, comments, argu ments, and exhibits at the hearing. A summary record shall be kept of any such hearing. (e) The Director shall make a deci sion regarding the proposed modifica tion, suspension, or revocation, as soon as practicable after the close of the hearing, or if no hearing is held, as soon as practicable after the close of the 10 day period during which a hear ing could have been requested. Notice of the modification, suspension, or rev ocation shall be published in the FED ERAL REGISTER within 10 days from the date of the Director’s decision. In no event shall the proposed action take ef fect until notice of the Director’s deci sion is published in the FEDERAL REG ISTER. § 18.34 Guidelines for use in safely de terring polar bears. (a) These guidelines are intended for use in safely deterring polar bears in the wild. They provide acceptable types of deterrence actions that any person, or their employee, or their agent, can use to deter a polar bear from dam aging private property; or that any person can use to deter a polar bear from endangering personal safety; or that a government employee can use to deter a polar bear from damaging pub lic property, and not cause the serious injury or death of a polar bear. Anyone acting in such a manner and con ducting activities that comply with the guidelines in this subpart does not need authorization under the MMPA to con duct such deterrence. Furthermore, ac tions consistent with these guidelines do not violate the take prohibitions of the MMPA or this part. A Federal, State or local government official or employee may take a polar bear in the course of his duties as an official or employee, as long as such taking is ac complished in accordance with § 18.22 of this part. (b) There are two types of deterrence measures that a person, or their em ployee, or their agent could follow to nonlethally deter a polar bear. Each type of measure includes a suite of ap propriate actions that the public may use. (1) Passive deterrence measures. Pas sive deterrence measures are those that prevent polar bears from gaining access to property or people. These measures provide for human safety and do not increase the risk of serious in jury or death of a polar bear. They in clude: (i) Rigid fencing. Rigid fencing and other fixed barriers such as gates and fence skirting can be used around buildings or areas to limit bears from accessing community or industrial sites and buildings. Fencing areas 5 acres (∼2 ha) and smaller can be used to limit human-bear interactions. Indus try standard chain-link fencing mate rial can be used. Chain-link fencing can be placed around buildings on pilings as fence skirting to limit access of bears underneath the buildings. (ii) Bear exclusion cages. Bear exclu sion cages provide a protective shelter for people in areas frequented by bears. Cages erected at building entry and exit points exclude polar bears from the immediate area and allow safe entry and exit for persons gaining ac cess to, or leaving, a building should a polar bear be in the vicinity. Addition ally, they provide an opportunity for people exiting a building to conduct a visual scan upon exit. Such a scan is especially important in areas where buildings are constructed above ground level due to permafrost because bears may be resting underneath. These cages can be used at homes or indus trial facilities to deter bears as well. Cages can be used in remote areas where bear use is not known, and along bear travel corridors, e.g., within 0.5 mile from coastline, to deter bears from facilities. Cages must be no smaller than 4 ft (width) by 4 ft (length) by 8 ft (height). Bars must be no smaller than 1 inch wide. Distance between bars must be no more than 4 inches clear on stairways and landings or when otherwise attached to a habit able structure; they may be no more than 5 inches clear for use in cages not attached to any habitable structure. A 4-inch distance between the bars would be sufficient to prevent a bear from VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00033 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 24 50 CFR Ch. I (10–1–23 Edition) § 18.34 reaching through, while providing visi ble space between bars. The ceiling of the cage must be enclosed. (iii) Bear-resistant garbage containers. Bear-resistant garbage containers pre vent bears from accessing garbage as a food source and limit polar bears from becoming food-conditioned or habituated to people and facilities. The absence of habituation further reduces the potential for bear-human inter actions. Bear-resistant garbage cans and garbage bins are manufactured by various companies and in various sizes. Commercially designed residential bear-resistant containers (32–130 gal lons) can be used. Two- to 6-cubic yard containers can be specifically designed by commercial vendors as bear-proof containers or have industry-standard lid locks to prohibit bear entry, de pending on the need and location. For remote seasonal camps, garbage can be temporarily stored in steel drums se cured with locking rings and a gasket, and removed from the site when trans portation is available. Larger garbage containers, such as dumpsters or ‘‘roll offs’’ (20 to 40 cubic yards), can limit bear-human interactions when the con tainers have bear-proof lids. Lids must be constructed of heavy steel tubing or similarly constructed with heavy ex panded metal. (2) Preventive deterrence measures. Pre ventive deterrence measures are those that can dissuade a polar bear from ini tiating an interaction with property or people. These measures provide for safe human use and do not increase the risk of serious injury or death of a polar bear. These are: (i) Acoustic devices. Acoustic deter rent devices may be used to create an auditory disturbance causing polar bears to move away from the affected area. The reasonable use of loud noises, e.g., vehicle engines, automobile sirens or horns, and air-horns, where such au ditory stimuli could startle a bear and disrupt its approach to property or peo ple, is authorized. This authorization is limited to deterrent devices with a sound strength of no greater than 140 dB SPL to be deployed for no more than a 30-second continuous time inter val. The use of commercially available air horns or other audible products used as perimeter alarms, which create sounds that fall below this upper limit, is acceptable. (ii) Vehicle or boat deterrence. Patrol ling the periphery of a compound or en campment using a vehicle, such as a truck or all-terrain vehicle (e.g., a snowmobile or a four wheeler), and de terring, but not chasing, polar bears with engine noise, or by blocking their approach without making a physical contact with the animal, is an accept able preventive deterrence. Similarly patrolling an area in a small boat using similar methods is acceptable. (c) The deterrence guidelines are pas sive or preventive in nature. Any ac tion to deter polar bears that goes be yond these specific measures could re sult in a taking and, unless otherwise exempted under the MMPA, would re quire separate authorization. The Serv ice acknowledges that there will be nu merous new techniques developed, or new applications of existing tech niques, for deterring bears. The Service will work to establish a system for evaluating new bear deterrence appli cations and techniques and will update this set of guidelines with examples of future approved methods. Deterrence actions (other than the measures de scribed in these guidelines) that do not result in serious injury or death to a polar bear remain permissible for per sons identified in section 101(a)(4)(A) of the MMPA. Prior to conducting activi ties beyond those specifically described in these guidelines, persons should con tact the Service’s Alaska Regional Of fice’s Marine Mammal Program for fur ther guidance (for the location of the Alaska Regional Office see 50 CFR 2.2(g)). [75 FR 61637, Oct. 6, 2010] Subpart E—Depleted Species or Stocks [Reserved] Subpart F—Transfer of Management Authority to States NOTE: Regulations governing the transfer of management authority to States pursuant to section 109 of the Marine Mammal Protec tion Act for marine mammal species under the jurisdiction of the Secretary of the Inte rior are found at part 403 of this title. [48 FR 22456, May 18, 1983] VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00034 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 25 U.S. Fish and Wildlife Serv., Interior § 18.74 Subpart G—Notice and Hearing on Section 103 Regulations SOURCE: 41 FR 5396, Feb. 6, 1976, unless oth erwise noted. § 18.70 Basis and purpose. (a) Sections 101(a)(2), 101(a)(3)(A), and 101(b) of the Marine Mammal Protec tion Act of 1972 (16 U.S.C. 1371(a)(2), 1371(a)(3)(A), and 1371(b)) and these reg ulations authorize the Director, U.S. Fish and Wildlife Service, to: (1) Im pose regulations governing the taking of marine mammals incidental to com mercial fishing operations; (2) waive the moratorium and adopt regulations with respect to the taking and import ing of animals from each species of ma rine mammals under his jurisdiction; and (3) prescribe regulations governing the taking of depleted marine mam mals by any Indian, Aleut or Eskimo, respectively. In prescribing regulations to carry out the provisions of said sec tions, the act refers the Director to section 103 (16 U.S.C. 1373). In accord ance with section 103(d), regulations must be made on the record after op portunity for an agency hearing on such regulations and, in the case of a waiver, on the determination by the Director to waive the moratorium pur suant to section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)). (b) [Reserved] § 18.71 Definitions. Definitions shall be the same as in subpart A of this part except as fol lows: (a) Party means for the purposes of this subpart: (1) The Director or his representa tive; or (2) A person who has notified the Di rector by specified dates of his or her intent to participate in the hearing pursuant to §§ 18.75 and 18.84(b). (b) Presiding officer means, for the purposes of this subpart, an adminis trative law judge of the Office of Hear ings and Appeals appointed in accord ance with 5 U.S.C. 3105. (c) Witness means, for the purposes of this subpart, any person who provides direct testimony on the proposed regu lations and waiver. A person may be both a party and a witness. § 18.72 Scope of regulations. The procedural regulations in this subpart govern the practice and proce dure in hearings held under section 103(d) of the Act. These hearings will be governed by the provisions of sections 556 and 557 of the Administrative Pro cedure Act (5 U.S.C. 556 and 557). The regulations shall be construed to se cure the just, speedy, and inexpensive determination of all issues raised with respect to any waiver and/or regulation proposed pursuant to section 103(d) of the act in a manner which gives full protection to the rights of all persons affected thereby. § 18.73 Burden of proof. The proponents of the proposed regu lations and waiver must demonstrate that any taking or importation of any marine mammal under such proposed regulations and waiver would be con sistent with the act. § 18.74 Notice of hearing. (a) A notice of hearing on any pro posed regulations shall be published in the FEDERAL REGISTER, together with the Director’s proposed determination to waive the moratorium pursuant to section 101(a)(3)(A) (16 U.S.C. 1371(a)(3)(A)), where applicable. (b) The notice shall state: (1) The nature of the hearing; (2) The place and date of the hearing. The date shall not be less than 60 days after publication of notice of the hear ing; (3) The legal authority under which the hearing is to be held; (4) The proposed regulations and waiver, where applicable, and a sum mary of the statements required by section 103(d) of the Act (16 U.S.C. 1373(d)); (5) Issues of fact which may be in volved in the hearing; (6) If an Environmental Impact Statement is required, the date of pub lication of the Statement and the times and place(s) where the State ment and comments thereon may be viewed and copied; (7) Any written advice received from the Marine Mammal Commission; (8) The times and place(s) where records and submitted direct testimony will be kept for public inspection, VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00035 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 26 50 CFR Ch. I (10–1–23 Edition) § 18.75 along with appropriate references to any other documents; (9) The final date for filing with the Director a notice of intent to partici pate in the hearing pursuant to § 18.75; (10) The final date for submission of direct testimony on the proposed regu lations and waiver, if applicable, and the number of copies required; (11) The docket number assigned to the case which shall be used in all sub sequent proceedings; and (12) The place and date of the pre hearing conference. § 18.75 Notification by interested per sons. Any person desiring to participate as a party shall notify the Director, by certified mail, on or before the date specified in the notice of hearing. § 18.76 Presiding officer. (a) Upon publication of the notice of hearing pursuant to § 18.74, the Office of Hearings and Appeals shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any con flict of interest, financial or otherwise, shall serve as presiding officer in such proceeding. (b) The presiding officer, in any pro ceeding under this subpart, shall have power to: (1) Change the time and place of the hearing and adjourn the hearing; (2) Evaluate direct testimony sub mitted pursuant to these regulations, make a preliminary determination of the issues, conduct a prehearing con ference to determine the issues for the hearing agenda, and cause to be pub lished in the FEDERAL REGISTER a final hearing agenda; (3) Rule upon motions, requests and admissibility of direct testimony; (4) Administer oaths and affirma tions, question witnesses and direct witnesses to testify; (5) Modify or waive any rule (after notice) when determining no party will be prejudiced; (6) Receive written comments and hear oral arguments; (7) Render a recommended decision; and (8) Do all acts and take all measures, including regulation of media cov erage, for the maintenance of order at and the efficient conduct of the pro ceeding. (c) In case of the absence of the origi nal presiding officer or his inability to act, the powers and duties to be per formed by the original presiding officer under this part in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer by the Office of Hearings and Appeals unless otherwise ordered by the Director. (d) The presiding officer shall with draw from the proceeding upon his own motion or upon the filing of a motion by a party under § 18.76(e) if he deems himself disqualified under recognized canons of judicial ethics. (e) A presiding officer may be re quested to withdraw at any time prior to the recommended decision. If there is filed by a party in good faith a time ly and sufficient affidavit alleging the presiding officer’s personal bias, mal ice, conflict of interest or other basis which might result in prejudice to a party, the hearing shall recess. The Di rector of the Office of Hearings and Ap peals shall immediately determine the matter as a part of the record and deci sion in the proceeding, after making such investigation or holding such hearings, or both, as he may deem ap propriate in the circumstances. § 18.77 Direct testimony submitted as written documents. (a) Unless otherwise specified, all di rect testimony, including accom panying exhibits, must be submitted to the presiding officer in writing no later than the dates specified in the notice of the hearing (§ 18.74), the prehearing order (§ 18.82), or within 15 days after the conclusion of the prehearing con ference (§ 18.84) as the case may be. All direct testimony, referred to in the af fidavit and made a part thereof, must be attached to the affidavit. Direct tes timony submitted with exhibits must state the issue to which the exhibit re lates; if no such statement is made, the presiding officer shall determine the relevance of the exhibit to the issues published in the FEDERAL REGISTER. (b) The direct testimony submitted shall contain: (1) A concise statement of the wit ness’ interest in the proceeding and his VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00036 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 27 U.S. Fish and Wildlife Serv., Interior § 18.82 position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the wit ness shall state his relationship to the party; and (2) Facts that are relevant and mate rial. (c) The direct testimony may propose issues of fact not defined in the notice of the hearing and the reason(s) why such issues should be considered at the hearing. (d) Ten copies of all direct testimony must be submitted unless the notice of the hearing otherwise specifies. (e) Upon receipt, direct testimony shall be assigned a number and stamped with that number and the docket number. (f) Contemporaneous with the publi cation of the notice of hearing, the Di rector’s direct testimony in support of the proposed regulations and waiver, where applicable, shall be available for public inspection as specified in the no tice of hearing. The Director may sub mit additional direct testimony during the time periods allowed for submis sion of such testimony by witnesses. § 18.78 Mailing address. Unless otherwise specified in the no tice of hearing, all direct testimony shall be addressed to the Presiding Of ficer, c/o Director, U.S. Fish and Wild life Service, Washington, DC 20240. All affidavits and exhibits shall be clearly marked with the docket number of the proceedings. § 18.79 Inspection and copying of doc uments. Any document in a file pertaining to any hearing authorized by this subpart or any document forming part of the record of such a hearing may be in spected and/or copied in the Office of the Director, U.S. Fish and Wildlife Service, Washington, DC 20240, unless the file is in the care and custody of the presiding officer, in which case he shall notify the parties as to where and when the record may be inspected. § 18.80 Ex parte communications. (a) After notice of a hearing is pub lished in the FEDERAL REGISTER, all communications, whether oral or writ ten, involving any substantive or pro cedural issue and directed either to the presiding officer or to the Director, Deputy Director or Marine Mammal Coordinator, U.S. Fish and Wildlife Service, without reference to these rules of procedure, shall be deemed ex parte communications and are not to be considered part of the record for de cision. (b) A record of oral conversations shall be made by the above persons who are contacted. All communications shall be available for public viewing at times and place(s) specified in the no tice of hearing. (c) The presiding officer shall not communicate with any party on any fact in issue or on the merits of the matter unless notice and opportunity is given for all parties to participate. § 18.81 Prehearing conference. (a) After an examination of all the di rect testimony submitted pursuant to § 18.77, the presiding officer shall make a preliminary determination of issues of fact which may be addressed at the hearing. (b) The presiding officer’s prelimi nary determination shall be made available at the place or places pro vided in the notice of the hearing (§ 18.74(b)(8)) at least five days before the prehearing conference is held. (c) The purpose of the prehearing conference shall be to enable the pre siding officer to determine, on the basis of the direct testimony submitted and prehearing discussions: (1) Whether the presiding officer’s preliminary determination of issues of fact for the hearing has omitted any significant issues; (2) What facts are not in dispute; (3) Which witnesses may appear at the hearing; and (4) The nature of the interest of each party and which parties’ interests are adverse. (d) Only parties may participate in the prehearing conference, and a party may appear in person or be represented by counsel. § 18.82 Prehearing order. (a) After the prehearing conference, the presiding officer shall prepare a prehearing order which shall be pub lished in the FEDERAL REGISTER within VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00037 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 28 50 CFR Ch. I (10–1–23 Edition) § 18.83 ten days after the conclusion of the conference. A copy of the prehearing order shall be mailed to all Parties. (b) The prehearing order shall list: (1) All the issues which the hearing shall address, the order in which those issues shall be presented, and the direct testi mony submitted which bears on the issues; and (2) a final date for submis sion of direct testimony on issues of fact not included in the notice of hear ing if such issues are presented. The prehearing order may also specify a final date for submission of direct tes timony to rebut testimony previously submitted during the time specified in the notice of the hearing. (c) The presiding officer shall publish with the prehearing order a list of wit nesses who may appear at the hearing, a list of parties, the nature of the in terest of each party, and which parties interests are adverse on the issues pre sented. (d) All parties shall be bound by the prehearing order. § 18.83 Determination to cancel the hearing. (a) If the presiding officer determines that no issues of material fact are pre sented by the direct testimony sub mitted prior to the date of the hearing, he may publish in the FEDERAL REG ISTER such determination and that on issues of material fact a hearing shall not be held. The presiding officer may provide an opportunity for argument on any issues of law presented by the direct testimony. (b) Promptly after oral argument, if any, the presiding officer shall make a recommended decision based on the record, which in this case shall consist of the direct testimony and any oral argument presented. He shall transmit to the Director his recommended deci sion, the record and a certificate stat ing that the record contains all the written direct testimony. The Director shall then make a final decision in ac cordance with these regulations (§ 18.91). § 18.84 Rebuttal testimony and new issues of fact in prehearing order. (a) Direct testimony to rebut testi mony offered during the time period specified in the notice of hearing may be submitted pursuant to these regula tions within fifteen days after the con clusion of the prehearing conference unless the presiding officer otherwise specifies in the prehearing order. (b) If the prehearing order presents issues not included in the notice of the hearing published pursuant to § 18.74: (1) Any person interested in partici pating at the hearing on such issues presented shall notify the Director by certified mail of an intent to partici pate not later than ten days after pub lication of the prehearing order. Such person may present direct testimony or cross-examine witnesses only on such issues presented unless he previously notified the Director pursuant to § 18.75; and (2) Additional written direct testi mony concerning such issues may be submitted within the time provided in the prehearing order. Such direct testi mony will comply with the require ments of § 18.77. § 18.85 Waiver of right to participate. Any person who fails to notify the Director of his intent to participate pursuant to § 18.75 or § 18.84 shall be deemed to have waived his right to par ticipate as a party. § 18.86 Conduct of the hearing. (a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer changes the time or place. If a change occurs, the presiding officer shall pub lish the change in the FEDERAL REG ISTER and shall expeditiously notify all parties by telephone or by mail. If the change in time or place of hearing is made less than five days before the date previously fixed for the hearing, the presiding officer shall also an nounce, or cause to be announced, the change at the time and place pre viously fixed for the hearing. (b) The presiding officer shall, at the commencement of the hearing, intro duce into the record the notice of hear ing as published in the FEDERAL REG ISTER, all subsequent notices published in the FEDERAL REGISTER, the Environ mental Impact Statement if it is re quired and the comments thereon and agency responses to the comments, and a list of all parties. Direct testimony VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00038 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 29 U.S. Fish and Wildlife Serv., Interior § 18.88 shall then be received with respect to the matters specified in the prehearing order in such order as the presiding of ficer shall announce. With respect to direct testimony submitted as rebuttal testimony or in response to new issues presented by the prehearing con ference, the presiding officer shall de termine the relevancy of such testi mony. (c) The hearing shall be publicly con ducted and reported verbatim by an of ficial reporter. (d) If a party objects to the admission or rejection of any direct testimony or to any other ruling of the presiding of ficer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The transcript shall not include argument or debate thereon except as ordered by the pre siding officer. The ruling of the pre siding officer on any objection shall be a part of the transcript and shall be subject to review at the same time and in the same manner as the Director’s final decision. Only objections made before the presiding officer may subse quently be relied upon in the pro ceedings. (e) All motions and requests shall be addressed to, and ruled on by, the pre siding officer if made prior to his cer tification of the transcript, or by the Director if made thereafter. § 18.87 Direct testimony. (a) Only direct testimony submitted as provided in these regulations and in troduced at the hearing by a witness shall be considered part of the record. Such direct testimony, when written, shall not be read into evidence but shall become a part of the record sub ject to exclusion of irrelevant and im material parts thereof. (b) The witness introducing direct testimony shall: (1) State his name, address and occu pation; (2) State qualifications for intro ducing the direct testimony. If an ex pert, the witness shall briefly state the scientific or technical training which qualifies him as an expert; (3) Identify the direct testimony pre viously submitted in accordance with these regulations; and (4) Submit to appropriate cross- and direct-examination. Cross-examination shall be by a party whose interests are adverse on the issue presented to the witness if the witness is a party, or to the interests of the party who pre sented the witness. (c) A party shall be deemed to have waived the right to introduce direct testimony if such party fails to present a witness to introduce the direct-testi mony. (d) Official notice may be taken of such matters as are judicially noticed by the courts of the United States. Parties shall be given adequate notice, by the presiding officer, at the hearing, of matters so noticed and shall be given adequate opportunity to show that such facts are inaccurate or are erroneously noticed. § 18.88 Cross-examination. (a) The presiding officer may: (1) Require the cross-examiner to outline the intended scope of the exam ination; and (2) Exclude cross-examination ques tions that are immaterial, irrelevant or unduly repetitious. (b) Any party shall be given an op portunity to appear, either in person or through an authorized counsel or rep resentative, to cross-examine wit nesses. Before cross-examining a wit ness, the party or counsel shall state his name, address and occupation. If counsel cross-examines the witness, counsel shall state for the record the authority to act as counsel. Cross-ex aminers shall be assumed to be famil iar with the direct testimony. (c) Any party or party’s counsel who fails to appear at the hearing to cross examine an ‘‘adverse’’ witness shall be deemed to have waived the right to cross-examine that witness. (d) Scientific, technical or commer cial publications may only be utilized for the limited purposes of impeaching witnesses under cross-examination un less previously submitted and intro duced in accordance with these regula tions. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00039 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 30 50 CFR Ch. I (10–1–23 Edition) § 18.89 § 18.89 Oral and written arguments. (a) The presiding officer may, in his discretion, provide for oral argument by parties at the end of the hearing. Such argument, when permitted, may be limited by the presiding officer to the extent necessary for the expedi tious disposition of the proceeding. (b) The presiding officer shall an nounce at the hearing a reasonable pe riod of time within which any party may file with the presiding officer pro posed findings and conclusions and written arguments or briefs, which are based upon the record and citing where practicable the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to re consider any objection made by such party to a ruling of the presiding offi cer, he shall specifically identify such rulings by reference to the pertinent pages of the transcript and shall state his arguments thereon as a part of the brief. (c) Oral or written arguments shall be limited to issues arising from direct testimony on the record. § 18.90 Recommended decision, certifi cation of the transcript and submis sion of comments on the rec ommended decision. (a) Promptly after expiration of the period for receiving written briefs, the presiding officer shall make a rec ommended decision based on the record and transmit the decision to the Direc tor. The recommended decision shall include: (1) A statement containing a descrip tion of the history of the proceedings; (2) Findings on the issues of fact with the reasons therefor; and (3) Rulings on issues of law. (b) The presiding officer shall also transmit to the Director the transcript of the hearing, the original and all cop ies of the direct testimony, and written comments. The presiding officer shall attach to the original transcript of the hearing a certificate stating that to the best of his knowledge and belief the transcript is a true transcript of the testimony given at the hearing except in such particulars as are specified. (c) Upon receipt of the recommended decision, the Director shall send a copy thereof to each party by certified mail and shall publish in the FEDERAL REG ISTER a notice of the receipt of the rec ommended decision by the Director. The notice shall include: (1) A summary of the recommended decision; (2) A statement that any interested person may file written comments on the recommended decision with the Di rector by a specified date; (3) The time(s) and place(s) where the record of the hearing transmitted to the Director pursuant to paragraph (b) of this section may be inspected by in terested persons; and (4) The time(s) and place(s) where the recommended decision may be in spected and/or copied by interested per sons. (d) Within thirty days after the no tice of receipt of the recommended de cision has been published in the FED ERAL REGISTER, any interested person may file with the Director any written comments on the recommended deci sion. All comments, including rec ommendations from or consultation with the Marine Mammal Commission, must be submitted during the thirty day period to the Director at the above address. § 18.91 Director’s decision. (a) Upon receipt of the recommended decision and transcript and after the thirty-day period for receiving written comments on the recommended deci sion has passed, the Director shall make a final decision on the proposed regulations and waiver, where applica ble. The Director’s decision may af firm, modify, or set aside, in whole or in part, the recommended findings, conclusions and decision of the pre siding officer. The Director may also remand the hearing record to the pre siding officer for a fuller development of the record. (b) The Director’s decision shall in clude: (1) A statement containing a descrip tion of the history of the proceeding; (2) Findings on the issues of fact with the reasons therefor; (3) Rulings on issues of law; and (4) Any other relevant information which the Director deems appropriate. (c) The Director’s decision shall be published in the FEDERAL REGISTER. If VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00040 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 31 U.S. Fish and Wildlife Serv., Interior § 18.120 the waiver is approved, the final adopt ed regulations shall be promulgated with the decision, or as soon thereafter as practicable. Subpart H—Waiver of Moratorium on Taking and Importation of Individual Marine Mammal Species SOURCE: 41 FR 14373, Apr. 5, 1976, unless otherwise noted. § 18.92 Purpose of regulations. The regulations contained in this subpart fulfill the requirements of sec tion 103 of the Act for regulations to govern the taking and importation of each species of marine mammal for which the moratorium imposed by sec tion 101 has been waived. § 18.93 Scope of regulations. (a) The provisions in this subpart apply only after (1) the Director has made a decision to waive a moratorium pursuant to section 101(a)(3)(A) of the Act, (2) the opportunity for a hearing required by section 103(d) of the Act has been provided, and (3) the Director has made a determination, in the case of State laws and regulations, to ap prove such State laws and regulations pursuant to section 109(a)(2) of the Act and subpart F of this part. (b) The provisions of this subpart, un less specifically stated, apply to all taking and/or importation of each spe cies of marine mammal for which the moratorium has been waived other than takings for scientific research or public display, which are governed by § 18.31 of this part, or takings inci dental to commercial fishing oper ations which are governed by § 18.24. § 18.94 Pacific walrus (Alaska). (a) Pursuant to sections 101(a)(3)(A) 103, and 109 of the Marine Mammal Pro tection Act of 1972, the moratorium on the hunting and killing of Pacific wal rus (Odobenus rosmarus) in waters or on lands subject to the jurisdiction of the State of Alaska, the United States, or on the high seas by any person, vessel, or conveyance subject to the jurisdic tion of the State of Alaska or the United States, is waived, provided that beginning August 2, 1979 this waiver shall not be effective, and no taking or importation under the waiver shall be allowed, until this section is amended to establish regulations to effectively control taking and otherwise imple ment the waiver. (b) [Reserved] [41 FR 14373, Apr. 5, 1976, as amended at 44 FR 45566, Aug. 2, 1979] Subpart I [Reserved] Subpart J—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Exploration, Development, and Production Activities in the Beaufort Sea and Adjacent Northern Coast of Alaska SOURCE: 86 FR 43070, Aug. 5, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 43070, Aug. 5, 2021, Part 18, subpart J was revised, effec tive Aug. 5, 2021 through Aug. 5, 2026. § 18.119 Specified activities covered by this subpart. Regulations in this subpart apply to the nonlethal incidental, but not inten tional, take of small numbers of polar bear and Pacific walrus by certain U.S. citizens while engaged in oil and gas exploration, development, and produc tion activities in the Beaufort Sea and adjacent northern coast of Alaska. § 18.120 Specified geographic region where this subpart applies. This subpart applies to the specified geographic region that encompasses all Beaufort Sea waters east of a north south line through Point Barrow, Alas ka (N71.39139, W156.475, BGN 1944), and 80.5 km (50 mi) north of Point Barrow, including Alaska State waters and Outer Continental Shelf waters, and east of that line to the Canadian bor der. (a) The offshore boundary of the Beaufort Sea incidental take regula tions (ITR) region extends 80.5 km (50 mi) offshore. The onshore region is the same north/south line at Utqiagvik, 40.2 km (25 mi) inland and east to the Canning River. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00041 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 32 50 CFR Ch. I (10–1–23 Edition) § 18.121 (b) The Arctic National Wildlife Ref uge and the associated offshore waters within the refuge boundaries are not included in the Beaufort Sea ITR re gion. Figure 1 shows the area where this subpart applies. § 18.121 Dates this subpart is in effect. Regulations in this subpart are effec tive from August 5, 2021, through Au gust 5, 2026, for year-round oil and gas exploration, development, and produc tion. § 18.122 Procedure to obtain a Letter of Authorization (LOA). (a) An applicant must be a U.S. cit izen as defined in § 18.27(c) and among: (1) Those entities specified in the re quest for this rule as set forth in para graph (b) of this section; (2) Any of their corporate affiliates; or (3) Any of their respective contrac tors, subcontractors, partners, owners, co-lessees, designees, or successors-in interest. (b) The entities specified in the re quest are the Alaska Oil and Gas Asso ciation, which includes Alyeska Pipe line Service Company, BlueCrest En ergy, Inc., Chevron Corporation, VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00042 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244 E R 05 A U 21 .0 18 < /G P H > js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 33 U.S. Fish and Wildlife Serv., Interior § 18.123 ConocoPhillips Alaska, Inc., Eni U.S. Operating Co. Inc., ExxonMobil Alaska Production Inc., Furie Operating Alas ka, LLC, Glacier Oil and Gas Corpora tion, Hilcorp Alaska, LLC, Marathon Petroleum, Petro Star Inc., Repsol, and Shell Exploration and Production Com pany, Alaska Gasline Development Corporation, Arctic Slope Regional Corporation Energy Services, Oil Search (Alaska), LLC, and Qilak LNG, Inc. (c) If an applicant proposes to con duct oil and gas industry exploration, development, and production in the Beaufort Sea ITR region described in § 18.120 that may cause the taking of Pacific walruses and/or polar bears and wants nonlethal incidental take au thorization under the regulations in this subpart J, the applicant must re quest an LOA. The applicant must sub mit the request for authorization to the Service’s Alaska Region Marine Mammals Management Office (see § 2.2 for address) at least 90 days prior to the start of the activity. (d) The request for an LOA must comply with the requirements set forth in §§ 18.126 through 18.128 and must in clude the following information: (1) A plan of operations that de scribes in detail the activity (e.g., type of project, methods, and types and numbers of equipment and personnel, etc.), the dates and duration of the ac tivity, and the specific locations of and areas affected by the activity. (2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of the activity on Pacific walruses and polar bears. (3) A site-specific Pacific walrus and polar bear safety, awareness, and inter action plan. The plan for each activity and location will detail the policies and procedures that will provide for the safety and awareness of personnel, avoid interactions with Pacific wal ruses and polar bears, and minimize impacts to these animals. (4) A plan of cooperation to mitigate potential conflicts between the activ ity and subsistence hunting, where rel evant. Applicants must provide docu mentation of communication with po tentially affected subsistence commu nities along the Beaufort Sea coast (i.e., Kaktovik, Nuiqsut, and Utqigvik) and appropriate subsistence user orga nizations (i.e., the Alaska Nannut Co Management Council, the Eskimo Wal rus Commission, or North Slope Bor ough) to discuss the location, timing, and methods of activities and identify and mitigate any potential conflicts with subsistence walrus and polar bear hunting activities. Applicants must specifically inquire of relevant commu nities and organizations if the activity will interfere with the availability of Pacific walruses and/or polar bears for the subsistence use of those groups. Re quests for an LOA must include docu mentation of all consultations with po tentially affected user groups. Docu mentation must include a summary of any concerns identified by community members and hunter organizations and the applicant’s responses to identified concerns. § 18.123 How the Service will evaluate a request for a Letter of Authoriza tion (LOA). (a) We will evaluate each request for an LOA based on the specific activity and the specific geographic location. We will determine whether the level of activity identified in the request ex ceeds that analyzed by us in consid ering the number of animals estimated to be taken and evaluating whether there will be a negligible impact on the species or stock and an unmitigable ad verse impact on the availability of the species or stock for subsistence uses. If the level of activity is greater, we will reevaluate our findings to determine if those findings continue to be appro priate based on the combined esti mated take of the greater level of ac tivity that the applicant has requested and all other activities proposed during the time of the activities in the LOA request. Depending on the results of the evaluation, we may grant the au thorization, add further conditions, or deny the authorization. (b) In accordance with § 18.27(f)(5), we will make decisions concerning with drawals of an LOA, either on an indi vidual or class basis, only after notice and opportunity for public comment. (c) The requirement for notice and public comment in paragraph (b) of this section will not apply should we VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00043 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 34 50 CFR Ch. I (10–1–23 Edition) § 18.124 determine that an emergency exists that poses a significant risk to the well-being of the species or stocks of polar bears or Pacific walruses. § 18.124 Authorized take allowed under a Letter of Authorization (LOA). (a) An LOA allows for the nonlethal, non-injurious, incidental, but not in tentional take by Level B harassment, as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1362), of Pacific walruses and/ or polar bears while conducting oil and gas industry exploration, development, and production within the Beaufort Sea ITR region described in § 18.120. (b) Each LOA will identify terms and conditions for each activity and loca tion. § 18.125 Prohibited take under a Let ter of Authorization (LOA). Except as otherwise provided in this subpart, prohibited taking is described in § 18.11 as well as: (a) Intentional take, Level A harass ment, as defined in section 3 of the Ma rine Mammal Protection Act (16 U.S.C. 1362), and lethal incidental take of polar bears or Pacific walruses; and (b) Any take that fails to comply with this subpart or with the terms and conditions of an LOA. § 18.126 Mitigation. (a) Mitigation measures for all Letters of Authorization (LOAs). Holders of an LOA must implement policies and pro cedures to conduct activities in a man ner that affects the least practicable adverse impact on Pacific walruses and/or polar bears, their habitat, and the availability of these marine mam mals for subsistence uses. Adaptive management practices, such as tem poral or spatial activity restrictions in response to the presence of marine mammals in a particular place or time or the occurrence of Pacific walruses and/or polar bears engaged in a bio logically significant activity (e.g., rest ing, feeding, denning, or nursing, among others), must be used to avoid interactions with and minimize im pacts to these animals and their avail ability for subsistence uses. (1) All holders of an LOA must: (i) Cooperate with the Service’s Ma rine Mammals Management Office and other designated Federal, State, and local agencies to monitor and mitigate the impacts of oil and gas industry ac tivities on Pacific walruses and polar bears. Where information is insuffi cient to evaluate the potential effects of activities on walruses, polar bears, and the subsistence use of these spe cies, holders of an LOA may be re quired to participate in joint moni toring and/or research efforts to ad dress these information needs and en sure the least practicable impact to these resources. (ii) Designate trained and qualified personnel to monitor for the presence of Pacific walruses and polar bears, ini tiate mitigation measures, and mon itor, record, and report the effects of oil and gas industry activities on Pa cific walruses and/or polar bears. (iii) Have an approved Pacific walrus and polar bear safety, awareness, and interaction plan on file with the Serv ice’s Marine Mammals Management Of fice and onsite and provide polar bear awareness training to certain per sonnel. Interaction plans must include: (A) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation); (B) A food, waste, and other ‘‘bear attractants’’ management plan; (C) Personnel training policies, pro cedures, and materials; (D) Site-specific walrus and polar bear interaction risk evaluation and mitigation measures; (E) Walrus and polar bear avoidance and encounter procedures; and (F) Walrus and polar bear observa tion and reporting procedures. (2) All applicants for an LOA must contact affected subsistence commu nities and hunter organizations to dis cuss potential conflicts caused by the activities and provide the Service doc umentation of communications as de scribed in § 18.122. (b) Mitigation measures for onshore ac tivities. Holders of an LOA must under take the following activities to limit disturbance around known polar bear dens: (1) Attempt to locate polar bear dens. Holders of an LOA seeking to carry out onshore activities during the denning VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00044 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 35 U.S. Fish and Wildlife Serv., Interior § 18.126 season (November–April) must conduct two separate surveys for occupied polar bear dens in all denning habitat within 1.6 km (1 mi) of proposed activities using aerial infrared (AIR) imagery. Further, all denning habitat within 1.6 km (1 mi) of areas of proposed seismic surveys must be surveyed three sepa rate times with AIR technology. (i) The first survey must occur be tween the dates of November 25 and De cember 15, the second between the dates of December 5 and December 31, and the third (if required) between the dates of December 15 and January 15. (ii) AIR surveys will be conducted during darkness or civil twilight and not during daylight hours. Ideal envi ronmental conditions during surveys would be clear, calm, and cold. If there is blowing snow, any form of precipita tion, or other sources of airborne mois ture, use of AIR detection is not ad vised. Flight crews will record and re port environmental parameters includ ing air temperature, dew point, wind speed and direction, cloud ceiling, and percent humidity, and a flight log will be provided to the Service within 48 hours of the flight. (iii) A scientist with experience in the in-air interpretation of AIR im agery will be on board the survey air craft to analyze the AIR data in real time. The data (infrared video) will be made available for viewing by the Service immediately upon return of the survey aircraft to the base of oper ations. (iv) All observed or suspected polar bear dens must be reported to the Serv ice prior to the initiation of activities. (2) Observe the exclusion zone around known polar bear dens. Operators must observe a 1.6-km (1-mi) operational ex clusion zone around all putative polar bear dens during the denning season (November–April, or until the female and cubs leave the areas). Should pre viously unknown occupied dens be dis covered within 1 mile of activities, work must cease, and the Service con tacted for guidance. The Service will evaluate these instances on a case-by case basis to determine the appropriate action. Potential actions may range from cessation or modification of work to conducting additional monitoring, and the holder of the authorization must comply with any additional measures specified. (3) Use the den habitat map developed by the USGS. A map of potential coastal polar bear denning habitat can be found at: https://www.usgs.gov/centers/ asc/science/polar-bear-maternal denning?qt-science center objects=4#qt science center objects. This measure en sures that the location of potential polar bear dens is considered when con ducting activities in the coastal areas of the Beaufort Sea. (4) Polar bear den restrictions. Restrict the timing of the activity to limit dis turbance around dens, including puta tive and known dens. (c) Mitigation measures for operational and support vessels. (1) Operational and support vessels must be staffed with dedicated marine mammal observers to alert crew of the presence of walruses and polar bears and initiate adaptive mitigation responses. (2) At all times, vessels must main tain the maximum distance possible from concentrations of walruses or polar bears. Under no circumstances, other than an emergency, should any vessel approach within an 805-m (0.5 mi) radius of walruses or polar bears observed on land or ice. (3) Vessel operators must take every precaution to avoid harassment of con centrations of feeding walruses when a vessel is operating near these animals. Vessels should reduce speed and main tain a minimum 805-m (0.5-mi) oper ational exclusion zone around feeding walrus groups. Vessels may not be op erated in such a way as to separate members of a group of walruses (i.e., greater than two) from other members of the group. When weather conditions require, such as when visibility drops, vessels should adjust speed accordingly to avoid the likelihood of injury to walruses. (4) Vessels bound for the Beaufort Sea ITR region may not transit through the Chukchi Sea prior to July 1. This operating condition is intended to allow walruses the opportunity to move through the Bering Strait and disperse from the confines of the spring lead system into the Chukchi Sea with minimal disturbance. It is also in tended to minimize vessel impacts upon the availability of walruses for VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00045 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 36 50 CFR Ch. I (10–1–23 Edition) § 18.127 Alaska Native subsistence hunters. Ex emption waivers to this operating con dition may be issued by the Service on a case-by-case basis, based upon a re view of seasonal ice conditions and available information on walrus and polar bear distributions in the area of interest. (5) All vessels must avoid areas of ac tive or anticipated walrus or polar bear subsistence hunting activity as deter mined through community consulta tions. (6) In association with marine activi ties, we may require trained marine mammal monitors on the site of the activity or onboard ships, aircraft, ice breakers, or other support vessels or vehicles to monitor the impacts of oil and gas industry activity on polar bear and Pacific walruses. (d) Mitigation measures for aircraft. (1) Operators of support aircraft shall, at all times, conduct their activities at the maximum distance possible from concentrations of walruses or polar bears. (2) Aircraft operations within the ITR area will maintain an altitude of 1,500 ft above ground level when safe and operationally possible. (3) Under no circumstances, other than an emergency, will aircraft oper ate at an altitude lower than 457 m (1,500 ft) within 805 m (0.5 mi) of wal ruses or polar bears observed on ice or land. Helicopters may not hover or cir cle above such areas or within 805 m (0.5 mi) of such areas. When weather conditions do not allow a 457-m (1,500 ft) flying altitude, such as during se vere storms or when cloud cover is low, aircraft may be operated below this al titude. However, when weather condi tions necessitate operation of aircraft at altitudes below 457 m (1,500 ft), the operator must avoid areas of known walrus and polar bear concentrations and will take precautions to avoid fly ing directly over or within 805 m (0.5 mile) of these areas. (4) Plan all aircraft routes to mini mize any potential conflict with active or anticipated walrus or polar bear hunting activity as determined through community consultations. (e) Mitigation measures for the subsist ence use of walruses and polar bears. Holders of an LOA must conduct their activities in a manner that, to the greatest extent practicable, minimizes adverse impacts on the availability of Pacific walruses and polar bears for subsistence uses. (1) Community consultation. Prior to receipt of an LOA, applicants must consult with potentially affected com munities and appropriate subsistence user organizations to discuss potential conflicts with subsistence walrus and polar bear hunting caused by the loca tion, timing, and methods of oper ations and support activities (see § 18.122 for details). If community con cerns suggest that the activities may have an adverse impact on the subsist ence uses of these species, the appli cant must address conflict avoidance issues through a plan of cooperation as described in paragraph (e)(2) of this section. (2) Plan of cooperation (POC). When appropriate, a holder of an LOA will be required to develop and implement a Service-approved POC. (i) The POC must include a descrip tion of the procedures by which the holder of the LOA will work and con sult with potentially affected subsist ence hunters and a description of spe cific measures that have been or will be taken to avoid or minimize inter ference with subsistence hunting of walruses and polar bears and to ensure continued availability of the species for subsistence use. (ii) The Service will review the POC to ensure that any potential adverse ef fects on the availability of the animals are minimized. The Service will reject POCs if they do not provide adequate safeguards to ensure the least prac ticable adverse impact on the avail ability of walruses and polar bears for subsistence use. § 18.127 Monitoring. Holders of an LOA must develop and implement a site-specific, Service-ap proved marine mammal monitoring and mitigation plan to monitor and evaluate the effectiveness of mitiga tion measures and the effects of activi ties on walruses, polar bears, and the subsistence use of these species and provide trained, qualified, and Service approved onsite observers to carry out monitoring and mitigation activities VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00046 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 37 U.S. Fish and Wildlife Serv., Interior § 18.128 identified in the marine mammal mon itoring and mitigation plan. § 18.128 Reporting requirements. Holders of a Letter of Authorization (LOA) must report the results of moni toring and mitigation activities to the Service’s Marine Mammals Manage ment Office via email at: fw7 mmm reports@fws.gov. (a) In-season monitoring reports. (1) Ac tivity progress reports. Holders of an LOA must: (i) Notify the Service at least 48 hours prior to the onset of activities; (ii) Provide the Service weekly progress reports of any significant changes in activities and/or locations; and (iii) Notify the Service within 48 hours after ending of activities. (2) Walrus observation reports. Holders of an LOA must report, on a weekly basis, all observations of walruses dur ing any industry activity. Upon re quest, monitoring report data must be provided in a common electronic for mat (to be specified by the Service). In formation in the observation report must include, but is not limited to: (i) Date, time, and location of each walrus sighting; (ii) Number of walruses; (iii) Sex and age (if known); (iv) Observer name and contact infor mation; (v) Weather, visibility, sea state, and sea-ice conditions at the time of obser vation; (vi) Estimated range at closest ap proach; (vii) Industry activity at time of sighting; (viii) Behavior of animals sighted; (ix) Description of the encounter; (x) Duration of the encounter; and (xi) Mitigation actions taken. (3) Polar bear observation reports. Holders of an LOA must report, within 48 hours, all observations of polar bears and potential polar bear dens, during any industry activity. Upon request, monitoring report data must be pro vided in a common electronic format (to be specified by the Service). Infor mation in the observation report must include, but is not limited to: (i) Date, time, and location of obser vation; (ii) Number of bears; (iii) Sex and age of bears (if known); (iv) Observer name and contact infor mation; (v) Weather, visibility, sea state, and sea-ice conditions at the time of obser vation; (vi) Estimated closest distance of bears from personnel and facilities; (vii) Industry activity at time of sighting; (viii) Possible attractants present; (ix) Bear behavior; (x) Description of the encounter; (xi) Duration of the encounter; and (xii) Mitigation actions taken. (b) Notification of LOA incident report. Holders of an LOA must report, as soon as possible, but within 48 hours, all LOA incidents during any industry ac tivity. An LOA incident is any situa tion when specified activities exceed the authority of an LOA, when a miti gation measure was required but not enacted, or when injury or death of a walrus or polar bear occurs. Reports must include: (1) All information specified for an observation report; (2) A complete detailed description of the incident; and (3) Any other actions taken. (c) Final report. The results of moni toring and mitigation efforts identified in the marine mammal monitoring and mitigation plan must be submitted to the Service for review within 90 days of the expiration of an LOA, or for pro duction LOAs, an annual report by January 15th of each calendar year. Upon request, final report data must be provided in a common electronic for mat (to be specified by the Service). In formation in the final (or annual) re port must include, but is not limited to: (1) Copies of all observation reports submitted under the LOA; (2) A summary of the observation re ports; (3) A summary of monitoring and mitigation efforts including areas, total hours, total distances, and dis tribution; (4) Analysis of factors affecting the visibility and detectability of walruses and polar bears during monitoring; (5) Analysis of the effectiveness of mitigation measures; VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00047 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 38 50 CFR Ch. I (10–1–23 Edition) § 18.129 (6) Analysis of the distribution, abun dance, and behavior of walruses and/or polar bears observed; and (7) Estimates of take in relation to the specified activities. § 18.129 Information collection re quirements. (a) We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has approved the collec tion of information contained in this subpart and assigned OMB control number 1018–0070. You must respond to this information collection request to obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal Protec tion Act. We will use the information to: (1) Evaluate the request and deter mine whether or not to issue specific Letters of Authorization; and (2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the Letters of Author ization. (b) Comments regarding the burden estimate or any other aspect of this re quirement must be submitted to the Information Collection Clearance Offi cer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR 2.1. Subpart K—Nonlethal Taking of Marine Mammals Incidental to Oil and Gas Activities in Cook Inlet, Alaska EFFECTIVE DATE NOTE: At 84 FR 37745, Aug. 1, 2019, Subpart K was added, effective Aug. 1, 2019 through Aug. 1, 2024. § 18.130 Specified activities covered by this subpart. Regulations in this subpart apply to the nonlethal incidental, but not inten tional, take, as defined in 50 CFR 18.3 and under the Marine Mammal Protec tion Act (16 U.S.C. 1362), of small num bers of northern sea otters (Enhydra lutris kenyoni; hereafter ‘‘otter,’’ ‘‘ot ters,’’ or ‘‘sea otters’’) by Hilcorp Alas ka, LLC, Harvest Alaska, LLC, and the Alaska Gasline Development Corpora tion while engaged in activities associ ated with or in support of oil and gas exploration, development, production, and transportation in Cook Inlet, Alas ka. § 18.131 Specified geographic region where this subpart applies. (a) The specified geographic region is Cook Inlet, Alaska, south of a line from the Susitna River Delta to Point Possession (approximately 61°15′54″ N, 150°41′07″ W, to 61°02′19″ N, 150°23′48″ W, WGS 1984) and north of a line from Rocky Cove to Coal Cove (approxi mately 59°25′56″ N, 153°44′25″ W and 59°23′48″ N, 151°54′28″ W, WGS 1984), ex cluding Ursus Cove, Iniskin Bay, Iliamna Bay, and Tuxedni Bay. (b) The geographic area of this inci dental take regulation (ITR) includes all Alaska State waters and Outer Con tinental Shelf Federal waters within this area as well as all adjacent rivers, estuaries, and coastal lands where sea otters may occur, except for those areas explicitly excluded in paragraph (a) of this section. (c) Map of the Cook Inlet ITR region follows: VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00048 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 39 U.S. Fish and Wildlife Serv., Interior § 18.134 § 18.132 Dates this subpart is in effect. Regulations in this subpart are effec tive from August 1, 2019, to August 1, 2024. § 18.133 Authorized take allowed under a Letter of Authorization (LOA). (a) To incidentally take marine mammals pursuant to the regulations in this subpart,, Hilcorp Alaska, LLC, Harvest Alaska, LLC, or the Alaska Gasline Development Corporation (hereafter ‘‘the applicant’’) must apply for and obtain an LOA in accordance with §§ 18.27(f) and 18.134. The applicant is a U.S. citizen as defined in § 18.27(c). (b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during activi ties specified in § 18.130 within the Cook Inlet ITR region described in § 18.131. (c) Each LOA will set forth: (1) Permissible methods of incidental take; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the find ings made for the total allowable take under these regulations in this subpart. § 18.134 Procedure to obtain a Letter of Authorization (LOA). (a) The applicant must submit the re quest for authorization to the U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals Man agement Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, Alaska, VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00049 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244 E R 01 A U 19 .0 00 < /G P H > js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 40 50 CFR Ch. I (10–1–23 Edition) § 18.135 99503, at least 90 days prior to the start of the proposed activity. (b) The request for an LOA must comply with the requirements set forth in §§ 18.137 through 18.139 and must in clude the following information: (1) A plan of operations that de scribes in detail the proposed activity (type of project, methods, and types and numbers of equipment and per sonnel, etc.), the dates and duration of the activity, and the specific locations of and areas affected by the activity. Changes to the proposed project with out prior authorization may invalidate an LOA. (2) A site-specific marine mammal monitoring and mitigation plan to monitor and mitigate the effects of the activity on sea otters. (3) An assessment of potential effects of the proposed activity on subsistence hunting of sea otters. (i) The applicant must communicate with potentially affected subsistence communities along the Cook Inlet coast and appropriate subsistence user organizations to discuss the location, timing, and methods of proposed ac tivities and identify any potential con flicts with subsistence hunting activi ties. (ii) The applicant must specifically inquire of relevant communities and organizations if the proposed activity will interfere with the availability of sea otters for the subsistence use of those groups. (iii) The applicant must include doc umentation of consultations with po tentially affected user groups. Docu mentation must include a list of per sons contacted, a summary of input re ceived, any concerns identified by com munity members and hunter organiza tions, and the applicant’s responses to identified concerns. (iv) If any concerns regarding effects of the activity on sea otter subsistence harvest are identified, the applicant will provide to the Service a Plan of Cooperation (POC) with specific steps for addressing those concerns, includ ing a schedule for ongoing community engagement and suggested measures that will be implemented to mitigate any potential conflicts with subsist ence hunting. § 18.135 How the Service will evaluate a request for a Letter of Authoriza tion (LOA). (a) The Service will evaluate each re quest for an LOA to determine if the proposed activity is consistent with the analysis and findings made for these regulations. Depending on the re sults of the evaluation, we may grant the authorization, add further condi tions, or deny the authorization. (b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that undermines the results of the pre vious evaluation, if the conditions of the regulations in this subpart are not being substantially complied with, or if the taking allowed is or may be having more than a negligible impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea otters for subsist ence uses. (c) The Service will make decisions concerning withdrawals of an LOA, ei ther on an individual or class basis, only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement for notice and public comment will not apply should we determine that an emer gency exists that poses a significant risk to the well-being of the species or stocks of sea otters. § 18.136 Prohibited take under a Let ter of Authorization (LOA). (a) Except as otherwise provided in this subpart, prohibited taking is de scribed in § 18.11 as well as: Intentional take, lethal incidental take of sea ot ters, and any take that fails to comply with this subpart or with the terms and conditions of an LOA. (b) If project activities cause unau thorized take, the applicant must take the following actions: (1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety) and re port the details of the incident to the Service MMM within 48 hours; and (2) Suspend further activities until the Service has reviewed the cir cumstances, determined whether addi tional mitigation measures are nec essary to avoid further unauthorized VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00050 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 41 U.S. Fish and Wildlife Serv., Interior § 18.137 taking, and notified the applicant that it may resume project activities. § 18.137 Mitigation. (a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant’s author ity (or ‘‘operators,’’ including contrac tors, subcontractors, and representa tives) must undertake the following ac tivities to avoid and minimize take of sea otters by harassment. (1) Implement policies and proce dures to avoid interactions with and minimize to the greatest extent prac ticable adverse impacts on sea otters, their habitat, and the availability of these marine mammals for subsistence uses. (2) Develop avoidance and minimiza tion policies and procedures, in co operation with the Service, that in clude temporal or spatial activity re strictions to be used in response to the presence of sea otters engaged in a bio logically significant activity (e.g., rest ing, feeding, hauling out, mating, or nursing). (3) Cooperate with the Service’s MMM Office and other designated Fed eral, State, and local agencies to mon itor and mitigate the impacts of oil and gas industry activities on sea ot ters. (4) Allow Service personnel or the Service’s designated representative to board project vessels or visit project work sites for the purpose of moni toring impacts to sea otters and sub sistence uses of sea otters at any time throughout project activities so long as it is safe to do so. (5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of sea otters, initiate mitigation measures, and mon itor, record, and report the effects of the activities on sea otters. The appli cant is responsible for providing train ing to PSOs to carry out mitigation and monitoring. (6) Have an approved mitigation and monitoring plan on file with the Serv ice MMM and onsite that includes the following information: (i) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation); (ii) Personnel training policies, pro cedures, and materials; (iii) Site-specific sea otter inter action risk evaluation and mitigation measures; (iv) Sea otter avoidance and encoun ter procedures; and (v) Sea otter observation and report ing procedures. (7) Contact affected subsistence com munities and hunter organizations to identify any potential conflicts that may be caused by the proposed activi ties and provide the Service docu mentation of communications as de scribed in § 18.134. (b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following measures: (1) Mitigation zones. Establish mitiga tion zones for project activities that generate underwater sound levels ≥160 decibels (dB) between 125 hertz (Hz) and 38 kilohertz (kHz) (hereafter ‘‘noise generating work’’). (i) All dB levels are referenced to 1 μPa for underwater sound. All dB levels herein are dBRMS unless otherwise noted; dBRMS refers to the root-mean squared dB level, the square root of the average of the squared sound pressure level, typically measured over 1 sec ond. (ii) Mitigation zones must include all in-water areas where work-related sound received by sea otters will match the levels and frequencies in paragraph (b)(1) of this section. Mitigation zones will be designated as follows: (A) An Exclusion Zone (EZ) will be established throughout all areas where sea otters may be exposed to sound lev els capable of causing Level A take as shown in the table in paragraph (b)(1)(iii) of this section. (B) The Safety Zone (SZ) is an area larger than the EZ and will include all areas within which sea otters may be exposed to noise levels that will likely result in Level B take as shown in the table in paragraph (b)(1)(iii) of this sec tion. (C) Both the EZ and SZ will be cen tered on the sound source. The method of estimation and minimum radius of each zone will be specified in any LOA issued under § 18.135 and will be based on onsite sound source verification VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00051 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 42 50 CFR Ch. I (10–1–23 Edition) § 18.137 (SSV), if available, or the best avail able science. (D) Onsite SSV testing will be con ducted prior to two-dimensional (2D) and three-dimensional (3D) seismic sur veys. (E) Seismic surveys (2D and 3D) must be conducted using equipment that generates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters. (iii) Summary of acoustic exposure thresholds for take of sea otters from underwater sound in the frequency range 125 Hz–38 kHz: TABLE 1 TO § 18.137(b)(1)(iii) Marine mammals Injury (Level A) threshold 1 Disturbance (Level B) threshold Impulsive Non-impulsive All Sea otters ............................. 232 dB peak; 203 dB SELCUM. 219 dB SELCUM .................. 160 dBRMS. 1 Based on acoustic criteria for otariid pinnipeds from the National Marine Fisheries Service. Sound source types are separated into impulsive (e.g., seismic, pipe driving, sub-bottom profiler) and non-impulsive (drilling, water jet) and require estimation of the distance to the peak received sound pressure level (peak) and 24-hr cumulative sound exposure level (SELCUM). (2) Monitoring. Designate trained and qualified PSOs or ‘‘observers’’ to mon itor for the presence of sea otters in mitigation zones, initiate mitigation measures, and record and report the ef fects of project work on otters for all noise-generating work. (3) Mitigation measures for sea otters in mitigation zones. The following actions will be taken in response to otters in mitigation zones: (i) Sea otters that are under no visi ble distress within the SZ must be monitored continuously. Power down, shut down, or maneuver away from the sea otter if practicable to reduce sound received by the animal. Maintain 100-m (301-ft) separation distance whenever possible. Exposures in this zone are counted as one Level B take per animal per day. (ii) When sea otters are observed within or approaching the EZ, noise generating work as defined in para graph (b)(1) of this section must be im mediately shut down or powered down to reduce the size of the zone suffi ciently to exclude the animal from the zone. Vessel speed or course may be al tered to achieve the same task. Expo sures in this zone are counted as one Level A take per animal per day. (iii) When sea otters are observed in visible distress (for example, vocal izing, repeatedly spy-hopping, or flee ing), noise-generating work as defined in paragraph (b)(1) of this section must be immediately shut down or powered down to reduce the size of the zone suf ficiently to exclude the animal from the zone. (iv) Following a shutdown, the noise generating activity will not resume until the sea otter has cleared the EZ. The animal will be considered to have cleared the EZ if it is visually observed to have left the EZ or has not been seen within the EZ for 30 minutes or longer. (4) Ramp-up procedures. Prior to noise-generating work, a ‘‘ramp-up’’ procedure must be used to increase the levels of underwater sound from noise generating work at a gradual rate. (i) Seismic surveys: A ramp-up will be used at the initial start of airgun oper ations and prior to restarting after any period greater than 10 minutes without airgun operations, including a power down or shutdown event (described in paragraphs (b)(6) and (7) of this sec tion). During geophysical work, the number and total volume of airguns will be increased incrementally until the full volume is achieved. The rate of ramp-up will be no more than 6 dB per 5-minute period. Ramp-up will begin with the smallest gun in the array that is being used for all airgun array con figurations. During the ramp-up, the applicable mitigation zones (based on type of airgun and sound levels pro duced) must be maintained. It will not be permissible to ramp up the full array from a complete shutdown in thick fog or at other times when the outer part of the EZ is not visible. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00052 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 43 U.S. Fish and Wildlife Serv., Interior § 18.137 Ramp-up of the airguns will not be ini tiated if a sea otter is sighted within the EZ at any time. (ii) Pile/pipe driving: A ramp-up of the hammering will precede each day’s pipe/pile driving activities or if pipe/ pile driving has ceased for more than 1 hour. The EZ will be determined clear of sea otters 30 minutes prior to a ramp-up to ensure no sea otters are within or entering the EZ. Initial ham mering starts will not begin during pe riods of poor visibility (e.g., night, fog, wind) when the entire EZ is not visible. The ramp-up procedure for impact hammers involves initially starting with three soft strikes at 40 percent en ergy, followed by a 1-minute waiting period followed by two subsequent three-strike sets. For vibratory ham mers, initial noise generation will be limited to 15 seconds at a reduced en ergy level, followed by a 1-minute wait ing period. This cycle will be repeated two additional times. Monitoring will occur during all hammering sessions. (iii) All activities: Any shutdown due to sea otters sighted within the EZ must be followed by a 30-minute all clear period and then a standard full ramp-up. Any shutdown for other rea sons resulting in the cessation of the sound source for a period greater than 30 minutes must also be followed by full ramp-up procedures. If otters are observed during a ramp-up effort or prior to startup, a PSO must record the observation and monitor the animal’s position until it moves out of visual range. Noise-generating work may commence if, after a full and gradual effort to ramp up the underwater sound level, the otter is outside of the EZ and does not show signs of visible distress (for example, vocalizing, repeatedly spy-hopping, or fleeing). (5) Startup procedures. (i) Visual moni toring must begin at least 30 minutes prior to, and continue throughout, ramp-up efforts. (ii) Visual monitoring must continue during all noise-generating work occur ring in daylight hours. (6) Power-down procedures. A power down procedure involves reducing the volume of underwater sound generated to prevent an otter from entering the EZ. (i) Whenever a sea otter is detected outside the EZ and, based on its posi tion and motion relative to the noise generating work, appears likely to enter the EZ but has not yet done so, operators may reduce power to noise generating equipment as an alternative to a shutdown. (ii) Whenever a sea otter is detected in the SZ, an operator may power down when practicable to reduce Level B take. (iii) During a power-down of seismic work, the number of airguns in use may be reduced, such that the EZ is re duced, making the sea otters unlikely to enter the EZ. A mitigation airgun (airgun of small volume such as the 10 in3 gun) will be operated continuously during a power-down of seismic work. (iv) After a power-down, noise-gener ating work will not resume until the sea otter has cleared the applicable EZ. The animal will be considered to have cleared the applicable zone if it is vis ually observed to have left the EZ and has not been seen within the zone for 30 minutes. (7) Shutdown procedure. A shutdown occurs when all noise-generating work is suspended. (i) Noise-generating work will be shut down completely if a sea otter en ters the EZ. (ii) The shutdown procedure will be accomplished within several seconds of the determination that a sea otter is either in or about to enter the EZ or as soon as practicable considering worker safety and equipment integrity. (iii) Noise-generating work will not proceed until all sea otters have cleared the EZ and the PSOs on duty are confident that no sea otters remain within the EZ. An otter will be consid ered to have cleared the EZ if it is vis ually observed to have left the EZ or has not been seen within the zone for 30 minutes. (iv) Visual monitoring must continue for 30 minutes after use of the acoustic source ceases or the sun sets, which ever is later. (8) Emergency shutdown. If observa tions are made or credible reports are received that one or more sea otters are within the area of noise-generating work and are indicating acute distress associated with the work, such as any VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00053 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 44 50 CFR Ch. I (10–1–23 Edition) § 18.138 injury due to seismic noise or per sistent vocalizations indicating separa tion of mother from pup, the work will be immediately shut down and the Service contacted. Work will not be re started until review and approval by the Service. (9) To ensure the proposed activities remain consistent with the estimated take of sea otters, operators may not conduct 3D seismic surveys where doing so will generate underwater noise levels that are likely to exceed acoustic exposure thresholds within areas of estimated sea otter densities greater than 0.026 otters per km. Maps of the areas will be provided to 3D seis mic operators and may be adjusted based on SSV results. This does not apply to 2D seismic surveys. (c) Mitigation for all in-water construc tion and demolition activity. (1) The ap plicant must implement a minimum EZ of a 10-m radius around the in water construction and demolition. If a sea otter comes within or approaches the EZ, such operations must cease. A larger EZ may be required for some ac tivities, such as blasting, and will be specified in the LOA. (2) All work in intertidal areas shall be conducted during low tide when the site is dewatered to the maximum ex tent practicable. (3) The applicant must evaluate al ternatives to pile-supported facilities. If no practicable alternative exists, the applicant must then evaluate the use of sound-attenuation devices such as pile caps and cushions, bubble curtains, and dewatered cofferdams during con struction. The Service may require sound-attenuation devices or alter natives to pile-supported designs. (d) Measures for vessel-based activities. (1) Vessel operators must take every precaution to avoid harassment of sea otters when a vessel is operating near these animals. (2) Vessels must remain at least 500 m from rafts of otters unless safety is a factor. (3) Vessels must reduce speed and maintain a distance of 100 m (328 ft) from all sea otters unless safety is a factor. (4) Vessels must not be operated in such a way as to separate members of a group of sea otters from other mem bers of the group. (5) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to avoid the likelihood of injury to sea otters. (6) Vessels in transit and support ves sels must use established navigation channels or commonly recognized ves sel traffic corridors, and must avoid alongshore travel in shallow water (<20 m) whenever practicable. (7) All vessels must avoid areas of ac tive or anticipated subsistence hunting for sea otters as determined through community consultations. (8) Vessel operators must be provided written guidance for avoiding colli sions and minimizing disturbances to sea otters. Guidance will include meas ures identified in paragraphs (d)(1) through (7) of this section. (e) Mitigation measures for aircraft ac tivities. (1) Aircraft must maintain a minimum altitude of 305 m (1,000 ft) to avoid unnecessary harassment of sea otters, except during takeoff and land ing, and when a lower flight altitude is necessary for safety due to weather or restricted visibility. (2) Aircraft must not be operated in such a way as to separate members of a group of sea otters from other mem bers of the group. (3) All aircraft must avoid areas of active or anticipated subsistence hunt ing for sea otters as determined through community consultations. (4) Unmanned aerial systems or drones must not cause take by harass ment of sea otters. Measures for avoid ance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal dis tance no less than 100 m away from ot ters, conducting continuous visual monitoring by PSOs, and ceasing ac tivities in response to sea otter behav iors indicating any reaction to drones. § 18.138 Monitoring. (a) Operators shall work with PSOs to apply mitigation measures, and shall recognize the authority of PSOs, up to and including stopping work, ex cept where doing so poses a significant safety risk to personnel. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00054 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 45 U.S. Fish and Wildlife Serv., Interior § 18.139 (b) Duties of PSOs include watching for and identifying sea otters, record ing observation details, documenting presence in any applicable monitoring zone, identifying and documenting po tential harassment, and working with operators to implement all appropriate mitigation measures. (c) A sufficient number of PSOs will be available to meet the following cri teria: 100 percent monitoring of EZs during all daytime periods of under water noise-generating work; a max imum of 4 consecutive hours on watch per PSO; a maximum of approximately 12 hours on watch per day per PSO. (d) All PSOs will complete a training course designed to familiarize individ uals with monitoring and data collec tion procedures. A field crew leader with prior experience as a sea otter ob server will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the Service to review. (e) Observers will be provided with reticule binoculars (10x42), big-eye bin oculars or spotting scopes (30x), inclinometers, and range finders. Field guides, instructional handbooks, maps and a contact list will also be made available. (f) Observers will collect data using the following procedures: (1) All data will be recorded onto a field form or database. (2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning and end of a monitoring period, every hour in between, at the change of an observer, and upon sightings of sea otters. (3) Observation records of sea otters will include date; time; the observer’s locations, heading, and speed (if mov ing); weather; visibility; number of ani mals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer). (4) Observation records will also in clude initial behaviors of the sea ot ters, descriptions of project activities and underwater sound levels being gen erated, the position of sea otters rel ative to applicable monitoring and mitigation zones, any mitigation meas ures applied, and any apparent reac tions to the project activities before and after mitigation. (5) For all otters in or near a mitiga tion zone, observers will record the dis tance from the vessel to the sea otter upon initial observation, the duration of the encounter, and the distance at last observation in order to monitor cumulative sound exposures. (6) Observers will note any instances of animals lingering close to or trav eling with vessels for prolonged periods of time. § 18.139 Reporting requirements. (a) Operators must notify the Service at least 48 hours prior to commence ment of activities. (b) Weekly reports will be submitted to the Service during in-water seismic activities. The reports will summarize project activities, monitoring efforts conducted by PSOs, the number of sea otters detected, the number exposed to sound levels greater than 160 dB, SSV results, and descriptions of all behav ioral reactions of sea otters to project activities. (c) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: Dates, times, weather, and sea conditions (including Cook Inlet marine state and wind force) when sea otters were sighted; the num ber, location, distance from the sound source, and behavior of the otters; the associated project activities; and a de scription of the implementation and ef fectiveness of mitigation measures with a discussion of any specific behav iors the otters exhibited in response to mitigation. (d) A final report will be submitted to the Service within 90 days after the ex piration of each LOA. It will include the following items: (1) Summary of monitoring efforts (hours of monitoring, activities mon itored, number of PSOs, and, if re quested by the Service, the daily moni toring logs). (2) All project activities will be de scribed, along with any additional VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00055 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 46 50 CFR Ch. I (10–1–23 Edition) § 18.140 work yet to be done. Factors influ encing visibility and detectability of marine mammals (e.g., sea state, num ber of observers, and fog and glare) will be discussed. (3) The report will also address fac tors affecting the presence and dis tribution of sea otters (e.g., weather, sea state, and project activities). An estimate will be included of the num ber of sea otters exposed to noise at re ceived levels greater than or equal to 160 dB (based on visual observation). (4) The report will describe changes in sea otter behavior resulting from project activities and any specific be haviors of interest. (5) It will provide a discussion of the mitigation measures implemented dur ing project activities and their ob served effectiveness for minimizing im pacts to sea otters. Sea otter observa tion records will be provided to the Service in the form of electronic data base or spreadsheet files. (6) The report will also evaluate the effectiveness of the POC (if applicable) for preventing impacts to subsistence users of sea otters, and it will assess any effects the operations may have had on the availability of sea otters for subsistence harvest. (e) All reports shall be submitted by email to fw7 mmm reports@fws.gov. (f) Injured, dead, or distressed sea ot ters that are not associated with project activities (e.g., animals known to be from outside the project area, previously wounded animals, or car casses with moderate to advanced de composition or scavenger damage) must be reported to the Service within 24 hours of the discovery to either the Service MMM (1–800–362–5148, business hours); or the Alaska SeaLife Center in Seward (1–888–774–7325, 24 hours a day); or both. Photographs, video, location information, or any other available documentation shall be provided to the Service. (g) Operators must notify the Service upon project completion or end of the work season. § 18.140 Measures to reduce impacts to subsistence users. (a) Prior to conducting the work, the applicant will take the following steps to reduce potential effects on subsist ence harvest of sea otters: (1) Avoid work in areas of known sea otter subsistence harvest; (2) Discuss the planned activities with subsistence stakeholders includ ing Cook Inlet villages, traditional councils, and the Cook Inlet Regional Citizens Advisory Council; (3) Identify and work to resolve con cerns of stakeholders regarding the project’s effects on subsistence hunting of sea otters; and (b) If any unresolved or ongoing con cerns remain, develop a POC in con sultation with the Service and subsist ence stakeholders to address these con cerns. The POC must include a sched ule for ongoing community engage ment and specific measures for miti gating any potential conflicts with subsistence hunting. § 18.141 Information collection re quirements. (a) We may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. OMB has approved the collec tion of information contained in this subpart and assigned OMB control number 1018–0070. The applicant must respond to this information collection request to obtain a benefit pursuant to section 101(a)(5) of the Marine Mammal Protection Act. We will use the infor mation to: (1) Evaluate the application and de termine whether or not to issue spe cific LOAs; and (2) Monitor impacts of activities and effectiveness of mitigation measures conducted under the LOAs. (b) Comments regarding the burden estimate or any other aspect of this re quirement must be submitted to the Information Collection Clearance Offi cer, U.S. Fish and Wildlife Service, at the address listed in 50 CFR part 2.1. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00056 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 47 U.S. Fish and Wildlife Serv., Interior § 18.146 Subpart L—Nonlethal Taking of Marine Mammals Incidental to Pile Driving and Marine Construction Activities in the Gulf of Alaska SOURCE: 88 FR 24127, Apr. 19, 2023, unless otherwise noted. EFFECTIVE DATE NOTE: At 88 FR 24127, Apr. 19, 2023, Subpart L was added, effective May 19, 2023, through May 19, 2028. §18.142 Specified activities covered by this subpart. Regulations in this subpart apply to the nonlethal incidental, but not inten tional, take, as defined in § 18.3 and under section 3 of the Marine Mammal Protection Act (16 U.S.C. 1371 et seq.), of small numbers of northern sea otters (Enhydra lutris kenyoni; hereafter ‘‘sea otters’’) by the U.S. Coast Guard (here after ‘‘USCG’’ or ‘‘the applicant’’) while engaged in activities associated with or in support of marine construc tion activities in the Gulf of Alaska. The applicant is a U.S. citizen as de fined in § 18.27(c). § 18.143 Specified geographic region where this subpart applies. (a) The specified geographic region encompasses areas within 2 kilometers (km) (∼1.25 miles (mi)) of eight USCG facilities within the USCG Civil Engi neering Unit, Juneau Area of Responsi bility. These facilities are: Base Ko diak, Moorings Seward, Moorings Valdez, Moorings Cordova, Moorings Sitka, Station Juneau, Moorings Pe tersburg, and Base Ketchikan. (b) The geographic area of the inci dental take regulations (ITRs) in this subpart includes all Alaska State waters within the areas listed in para graph (a) of this section as well as all adjacent rivers, estuaries, and coastal lands where sea otters may occur. § 18.144 Dates this subpart is in effect. Regulations in this subpart are effec tive from May 19, 2023, until May 19, 2028. § 18.145 Procedure to obtain a Letter of Authorization (LOA). (a) The applicant must submit the re quest for authorization to the U.S. Fish and Wildlife Service (Service) Alaska Region Marine Mammals Man agement Office (MMM), MS 341, 1011 East Tudor Road, Anchorage, Alaska, 99503, or by email at r7mmmregulatory@fws.gov, at least 30 days prior to the start of the planned activity. (b) The request for an LOA must comply with the requirements set forth in §§ 18.149 through 18.151 and must in clude the following information: (1) An operational plan for the activ ity; (2) A digital geospatial file of the project footprint, including sound isopleths; (3) A site-specific marine mammal monitoring and mitigation plan that specifies the procedures to monitor and mitigate the effects of the activities on sea otters; and (4) When appropriate, a plan of co operation, which is a documented plan that describes measures to mitigate po tential conflicts between planned project activities and subsistence hunt ing. § 18.146 How the Service will evaluate a request for an LOA. (a) The Service will evaluate each re quest for an LOA to determine if the proposed activity is consistent with the analysis and findings made for the regulations in this subpart. Depending on the results of the evaluation, we may issue the LOA, add further condi tions, or deny the LOA. (b) Once issued, the Service may withdraw or suspend an LOA if the project activity is modified in a way that undermines the results of the pre vious evaluation, if the conditions of the regulations in this subpart are not being substantially complied with, or if the taking allowed is or may be having more than a negligible impact on the affected stock of sea otters or an unmitigable adverse impact on the availability of sea otters for subsist ence uses. (c) The Service will make decisions concerning withdrawals of an LOA, ei ther on an individual or class basis, only after notice and opportunity for public comment in accordance with § 18.27(f)(5). The requirement for notice and public comment will not apply VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00057 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 48 50 CFR Ch. I (10–1–23 Edition) § 18.147 should we determine that an emer gency exists that poses a significant risk to the well-being of the species or stocks of sea otters. § 18.147 Authorized take allowed under an LOA. (a) To incidentally take sea otters pursuant to the regulations in this sub part, the USCG must apply for and ob tain an LOA in accordance with §§ 18.27(f) and 18.145. The applicant is a U.S. citizen as defined in § 18.27(c). (b) An LOA allows for the nonlethal, incidental, but not intentional take by harassment of sea otters during activi ties specified in § 18.142 within the Gulf of Alaska ITR region described in § 18.143. (c) Each LOA will set forth: (1) Permissible methods of incidental take; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (d) Issuance of the LOA(s) must be based on a determination that the level of take will be consistent with the find ings made for the total allowable take under the regulations in this subpart. § 18.148 Prohibited take under an LOA. (a) Except as otherwise provided in this subpart, prohibited taking is de scribed in § 18.11 as well as: intentional take, lethal incidental take of sea ot ters, and any take that fails to comply with this subpart or with the terms and conditions of an LOA. (b) If project activities cause unau thorized take, the applicant must take the following actions: (1) Cease activities immediately (or reduce activities to the minimum level necessary to maintain safety) and re port the details of the incident to the Service MMM at 1–800–362–5148 (busi ness hours) within 48 hours; and (2) Suspend further activities until the Service has reviewed the cir cumstances, determined whether addi tional mitigation measures are nec essary to avoid further unauthorized taking, and notified the applicant that project activities may resume. § 18.149 Mitigation. (a) Mitigation measures for all LOAs. The applicant, including all personnel operating under the applicant’s author ity (or ‘‘operators,’’ including contrac tors, subcontractors, and representa tives) must undertake the following ac tivities to avoid and minimize take of sea otters by harassment. (1) Implement policies and proce dures to avoid interactions with and minimize to the greatest extent prac ticable adverse impacts on sea otters, their habitat, and the availability of these marine mammals for subsistence uses. (2) Develop avoidance and minimiza tion policies and procedures, in co operation with the Service, that in clude temporal or spatial activity re strictions to be used in response to the presence of sea otters engaged in a bio logically significant activity (e.g., rest ing, feeding, hauling out, mating, or nursing). (3) Cooperate with the Service’s MMM Office and other designated Fed eral, State, and local agencies to mon itor and mitigate the impacts of pile driving and marine construction activi ties on sea otters. (4) Allow Service personnel or the Service’s designated representative to board project vessels or visit project worksites for the purpose of moni toring impacts to sea otters and sub sistence uses of sea otters at any time throughout project activities so long as it is safe to do so. (5) Designate trained and qualified protected species observers (PSOs) to monitor for the presence of sea otters, initiate mitigation measures, and mon itor, record, and report the effects of the activities on sea otters. The appli cant is responsible for providing train ing to PSOs to carry out mitigation and monitoring. (6) Have an approved mitigation and monitoring plan on file with the Serv ice MMM and onsite that includes the following information: (i) The type of activity and where and when the activity will occur (i.e., a summary of the plan of operation); VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00058 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 49 U.S. Fish and Wildlife Serv., Interior § 18.150 (ii) Personnel training policies, pro cedures, and materials; (iii) Site-specific sea otter inter action risk evaluation and mitigation measures; (iv) Sea otter avoidance and encoun ter procedures; and (v) Sea otter observation and report ing procedures. (b) Mitigation measures for in-water noise-generating work. The applicant must carry out the following measures: (1) Construction activities must be conducted using equipment that gen erates the lowest practicable levels of underwater sound within the range of frequencies audible to sea otters. (2) During all pile-installation activi ties, regardless of predicted sound lev els, a physical interaction shutdown zone of 20 meters (m) (66 feet (ft)) must be enforced. If a sea otter enters the shutdown zone, in-water activities must be delayed until either the ani mal has been visually observed outside the shutdown zone or 15 minutes have elapsed since the last observation time without redetection of the animal. (3) If the impact driver has been idled for more than 30 minutes, an initial set of three strikes from the impact driver must be delivered at reduced energy, followed by a 1-minute waiting period, before full-powered proofing strikes. (4) In-water activity must be con ducted in daylight. If environmental conditions prevent visual detection of sea otters within the shutdown zone, in-water activities must be stopped until visibility is regained. (5) All in-water work along the shore line must be conducted during low tide when the site is dewatered to the max imum extent practicable. (6) When an impact hammer is used, noise-dampening block cushions or pile caps will be placed between the ham mer and pile. (c) Mitigation measures for vessel oper ations. Vessel operators must take every precaution to avoid harassment of sea otters when a vessel is operating near these animals. The applicant must carry out the following measures: (1) Vessels must remain at least 500 m (1,640 ft) from rafts of sea otters un less safety is a factor. Vessels must re duce speed and maintain a distance of 100 m (328 ft) from all sea otters unless safety is a factor. (2) Vessels must not be operated in such a way as to separate members of a group of sea otters from other mem bers of the group and must avoid along shore travel in shallow water (<20 m (∼66 ft)) whenever practicable. (3) When weather conditions require, such as when visibility drops, vessels must adjust speed accordingly to avoid the likelihood of injury to sea otters. (4) Vessel operators must be provided written guidance for avoiding colli sions and minimizing disturbances to sea otters. Guidance will include meas ures identified in paragraph (c) of this section. § 18.150 Monitoring. (a) Operators must work with PSOs to apply mitigation measures and must recognize the authority of PSOs, up to and including stopping work, except where doing so poses a significant safe ty risk to personnel. (b) Duties of PSOs include watching for and identifying sea otters, record ing observation details, documenting presence in any applicable monitoring zone, identifying and documenting po tential harassment, and working with operators to implement all appropriate mitigation measures. (c) A sufficient number of PSOs will be available to meet the following cri teria: 100 percent monitoring of exclu sion zones during all daytime periods of underwater noise-generating work; a maximum of 4 consecutive hours on watch per PSO; a maximum of approxi mately 12 hours on watch per day per PSO. (d) All PSOs will complete a training course designed to familiarize individ uals with monitoring and data collec tion procedures. A field crew leader with prior experience as a sea otter ob server will supervise the PSO team. Initially, new or inexperienced PSOs will be paired with experienced PSOs so that the quality of marine mammal observations and data recording is kept consistent. Resumes for candidate PSOs will be made available for the Service to review. (e) Observers will be provided with reticule binoculars (10×42), big-eye bin oculars or spotting scopes (30×), VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00059 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 50 50 CFR Ch. I (10–1–23 Edition) § 18.151 inclinometers, and range finders. Field guides, instructional handbooks, maps, and a contact list will also be made available. (f) Observers will collect data using the following procedures: (1) All data will be recorded onto a field form or database. (2) Global positioning system data, sea state, wind force, and weather will be collected at the beginning and end of a monitoring period, every hour in between, at the change of an observer, and upon sightings of sea otters. (3) Observation records of sea otters will include date; time; the observer’s locations, heading, and speed (if mov ing); weather; visibility; number of ani mals; group size and composition (adults/juveniles); and the location of the animals (or distance and direction from the observer). (4) Observation records will also in clude initial behaviors of the sea ot ters, descriptions of project activities and underwater sound levels being gen erated, the position of sea otters rel ative to applicable monitoring and mitigation zones, any mitigation meas ures applied, and any apparent reac tions to the project activities before and after mitigation. (5) For all sea otters in or near a mitigation zone, observers will record the distance from the vessel to the sea otter upon initial observation, the du ration of the encounter, and the dis tance at last observation in order to monitor cumulative sound exposures. (6) Observers will note any instances of animals lingering close to or trav eling with vessels for prolonged periods of time. § 18.151 Reporting requirements. (a) Operators must notify the Service at least 48 hours prior to commence ment of activities. (b) Monthly reports will be submitted to the Service MMM for all months during which noise-generating work takes place. The monthly report will contain and summarize the following information: dates, times, weather, and sea conditions (including the Beaufort Scale’s sea state and wind force condi tions) when sea otters were sighted; the number, location, distance from the sound source, and behavior of the sea otters; the associated project ac tivities; and a description of the imple mentation and effectiveness of mitiga tion measures with a discussion of any specific behaviors the sea otters exhib ited in response to mitigation. (c) A final report will be submitted to the Service within 90 days after the ex piration of each LOA. It will include the following: (1) A summary of monitoring efforts (hours of monitoring, activities mon itored, number of PSOs, and, if re quested by the Service, the daily moni toring logs). (2) A description of all project activi ties, along with any additional work yet to be done. Factors influencing vis ibility and detectability of marine mammals (e.g., sea state, number of ob servers, and fog and glare) will be dis cussed. (3) A description of the factors affect ing the presence and distribution of sea otters (e.g., weather, sea state, and project activities). An estimate will be included of the number of sea otters ex posed to noise at received levels great er than or equal to 160 dBRMS re: 1 μPa (decibels root-mean squared referenced to 1 microPascal) (based on visual ob servation). (4) A description of changes in sea otter behavior resulting from project activities and any specific behaviors of interest. (5) A discussion of the mitigation measures implemented during project activities and their observed effective ness for minimizing impacts to sea ot ters. Sea otter observation records will be provided to the Service in the form of electronic database or spreadsheet files. (d) All reports must be submitted by email to fw7lmmmlreports@fws.gov. (e) Injured, dead, or distressed sea ot ters that are not associated with project activities (e.g., animals known to be from outside the project area, previously wounded animals, or car casses with moderate to advanced de composition or scavenger damage) must be reported to the Service within 24 hours of the discovery to either the Service MMM (1–800–362–5148, business hours); or the Alaska SeaLife Center in Seward (1–888–774–7325, 24 hours a day); or both. Photographs, video, location VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00060 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R 51 U.S. Fish and Wildlife Serv., Interior § 19.4 information, or any other available documentation must be provided to the Service. (f) Operators must notify the Service upon project completion or end of the work season. § 18.152 Information collection re quirements. The Office of Management and Budg et (OMB) has approved the information collection requirements contained in this part and assigned OMB Control Number 1018–0070. Federal agencies may not conduct or sponsor, and a per son is not required to respond to, a col lection of information unless it dis plays a currently valid OMB control number. Direct comments regarding the burden estimate or any other as pect of the information collection to the Service’s Information Collection Clearance Officer at the address pro vided at 50 CFR 2.1(b). PART 19—AIRBORNE HUNTING Subpart A—Introduction Sec. 19.1 Purpose of regulations. 19.2 Scope of regulations. 19.3 Relation to other laws. 19.4 Definitions. Subpart B—Prohibitions 19.11 General prohibitions. 19.12 Exceptions to general prohibitions. Subpart C—Federal Permits 19.21 Limitation on Federal permits. Subpart D—State Permits and Annual Report Requirements 19.31 State permits. 19.32 Annual reporting requirements. AUTHORITY: Fish and Wildlife Act of 1956, 85 Stat. 480, as amended, 86 Stat. 905 (16 U.S.C. 742a—j–1). SOURCE: 39 FR 1177, Jan. 4, 1974, unless oth erwise noted. Subpart A—Introduction § 19.1 Purpose of regulations. The regulations contained in this part provide rules relative to the prohi bition against shooting or harassing of wildlife from any aircraft, provide the requirements for the contents and fil ing of annual reports by the States re garding permits issued for such shoot ing or harassing, and provide regula tions necessary for effective enforce ment of the Fish and Wildlife Act of 1956 as amended (16 U.S.C. 742a—j–1). § 19.2 Scope of regulations. The regulations contained in this part apply to all persons within the territorial jurisdiction of the United States, to all United States citizens whether within the territorial jurisdic tion of the United States or on the high seas or on board aircraft in flight over the high seas, and to all persons on board aircraft belonging in whole or in part to any United States citizen, firm, or partnership, or corporation created by or under the laws of the United States, or any State, territory or possession thereof. § 19.3 Relation to other laws. The exemptions to general prohibi tions of the Fish and Wildlife Act of 1956, that permit airborne hunting in certain circumstances (See subpart B of this part) do not supersede, or au thorize the violation of, other laws de signed for the conservation or protec tion of wildlife, including those laws prohibiting the shooting or harassing of bald and golden eagles, polar bears and other marine mammals, migratory birds, and other wildlife, except to the extent that airborne hunting is author ized by regulations or permits issued under authority of those laws. (See e.g., § 21.100 of this subchapter.) [39 FR 1177, Jan. 4, 1974, as amended at 87 FR 880, Jan. 7, 2022] § 19.4 Definitions. In addition to definitions contained in part 10 of this subchapter, and unless the context otherwise requires, in this part 19: Harass means to disturb, worry, mo lest, rally, concentrate, harry, chase, drive, herd or torment. VerDate Sep<11>2014 08:53 Feb 09, 2024 Jkt 259244 PO 00000 Frm 00061 Fmt 8010 Sfmt 8010 Y:\SGML\259244.XXX 259244js pe ar s on D S K 12 1T N 23 P R O D w ith C F R