50 CFR § 216.101-216.108 - General Regulations Governing Small Takes of Marine Mammals Incidental to Specified Activities

83 National Marine Fisheries Service/NOAA, Commerce § 216.103 (b) Location and size of the official mark. The official mark on labels must allow the consumer to identify the offi cial mark and be similar in design and scale to figure 1. A full color version of the official mark is available at https:// www.fisheries.noaa.gov/national/marine mammal-protection/dolphin-safe-official mark. [65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004, as amended at 83 FR 3626, Jan. 26, 2018] Subpart I—General Regulations Governing Small Takes of Ma rine Mammals Incidental to Specified Activities SOURCE: 61 FR 15887, Apr. 10, 1996, unless otherwise noted. § 216.101 Purpose. The regulations in this subpart im plement section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, the inci dental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fish ing) within a specified geographic re gion. § 216.102 Scope. The taking of small numbers of ma rine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence available, that the total tak ing by the specified activity during the specified time period will have a neg ligible impact on species or stock of marine mammal(s) and will not have an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for sub sistence uses; (b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an inci dental harassment authorization issued under § 216.107, setting forth permis sible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsist ence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and (c) Prescribes either regulations or requirements and conditions contained within an incidental harassment au thorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part. § 216.103 Definitions. In addition to definitions contained in the MMPA, and in § 216.3, and unless the context otherwise requires, in sub sequent subparts to this part: Arctic waters means the marine and estuarine waters north of 60° N. lat. Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, state and local government agencies shall also constitute citizens of the United States for purposes of this part. Incidental harassment, incidental tak ing and incidental, but not intentional, taking all mean an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, un avoidable or accidental. (A complete definition of ‘‘take’’ is contained in § 216.3). 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, that takes place in a specified geographical region and potentially involves the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00093 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 84 50 CFR Ch. II (10–1–22 Edition) § 216.104 taking of small numbers of marine mammals. Specified geographical region means an area within which a specified activity is conducted and that has certain bio geographic characteristics. Unmitigable adverse impact means an impact resulting from the specified ac tivity: (1) That is likely to reduce the avail ability of the species to a level insuffi cient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) Directly displacing subsistence users; or (iii) Placing physical barriers be tween the marine mammals and the subsistence hunters; and (2) That cannot be sufficiently miti gated by other measures to increase the availability of marine mammals to allow subsistence needs to be met. § 216.104 Submission of requests. (a) In order for the National Marine Fisheries Service to consider author izing the taking by U.S. citizens of small numbers of marine mammals in cidental to a specified activity (other than commercial fishing), or to make a finding that an incidental take is un likely to occur, a written request must be submitted to the Assistant Adminis trator. All requests must include the following information for their activ ity: (1) A detailed description of the spe cific activity or class of activities that can be expected to result in incidental taking of marine mammals; (2) The date(s) and duration of such activity and the specific geographical region where it will occur; (3) The species and numbers of ma rine mammals likely to be found with in the activity area; (4) A description of the status, dis tribution, and seasonal distribution (when applicable) of the affected spe cies or stocks of marine mammals like ly to be affected by such activities; (5) The type of incidental taking au thorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking; (6) By age, sex, and reproductive con dition (if possible), the number of ma rine mammals (by species) that may be taken by each type of taking identified in paragraph (a)(5) of this section, and the number of times such takings by each type of taking are likely to occur; (7) The anticipated impact of the ac tivity upon the species or stock of ma rine mammal; (8) The anticipated impact of the ac tivity on the availability of the species or stocks of marine mammals for sub sistence uses; (9) 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; (10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations in volved; (11) 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 on their availability for subsistence uses, pay ing particular attention to rookeries, mating grounds, and areas of similar significance; (12) Where the proposed activity would take place in or near a tradi tional Arctic subsistence hunting area and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence uses, the applicant must submit either a plan of coopera tion or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following: (i) A statement that the applicant has notified and provided the affected subsistence community with a draft plan of cooperation; (ii) A schedule for meeting with the affected subsistence communities to discuss proposed activities and to re solve potential conflicts regarding any aspects of either the operation or the plan of cooperation; (iii) A description of what measures the applicant has taken and/or will VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00094 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 85 National Marine Fisheries Service/NOAA, Commerce § 216.105 take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and (iv) What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve con flicts and to notify the communities of any changes in the operation; (13) The suggested means of accom plishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes al ready applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to deter mine the movement and activity of marine mammals near the activity site(s) including migration and other habitat uses, such as feeding. Guide lines for developing a site-specific mon itoring plan may be obtained by writ ing to the Director, Office of Protected Resources; and (14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities re lating to reducing such incidental tak ing and evaluating its effects. (b)(1) The Assistant Administrator shall determine the adequacy and com pleteness of a request and, if deter mined to be adequate and complete, will begin the public review process by publishing in the FEDERAL REGISTER ei ther: (i) A proposed incidental harassment authorization; or (ii) A notice of receipt of a request for the implementation or re implementation of regulations gov erning the incidental taking. (2) Through notice in the FEDERAL REGISTER, newspapers of general cir culation, and appropriate electronic media in the coastal areas that may be affected by such activity, NMFS will invite information, suggestions, and comments for a period not to exceed 30 days from the date of publication in the FEDERAL REGISTER. All informa tion and suggestions will be considered by the National Marine Fisheries Serv ice in developing, if appropriate, the most effective regulations governing the issuance of letters of authorization or conditions governing the issuance of an incidental harassment authoriza tion. (3) Applications that are determined to be incomplete or inappropriate for the type of taking requested, will be re turned to the applicant with an expla nation of why the application is being returned. (c) The Assistant Administrator shall evaluate each request to determine, based upon the best available scientific evidence, whether the taking by the specified activity within the specified geographic region will have a neg ligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Assistant Ad ministrator finds that the mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that re quirement, the Assistant Adminis trator may make a finding of neg ligible impact subject to such miti gating measures being successfully im plemented. Any preliminary findings of ‘‘negligible impact’’ and ‘‘no unmitigable adverse impact’’ shall be proposed for public comment along with either the proposed incidental harassment authorization or the pro posed regulations for the specific activ ity. (d) If, subsequent to the public review period, the Assistant Administrator finds that the taking by the specified activity would have more than a neg ligible impact on the species or stock of marine mammal or would have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Assistant Admin istrator shall publish in the FEDERAL REGISTER the negative finding along with the basis for denying the request. § 216.105 Specific regulations. (a) For all petitions for regulations under this paragraph, applicants must provide the information requested in § 216.104(a) on their activity as a whole, which includes, but is not necessarily VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00095 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 86 50 CFR Ch. II (10–1–22 Edition) § 216.106 limited to, an assessment of total im pacts by all persons conducting the ac tivity. (b) For allowed activities that may result in incidental takings of small numbers of marine mammals by har assment, serious injury, death or a combination thereof, specific regula tions shall be established for each al lowed activity that set forth: (1) Permissible methods of taking; (2) Means of effecting the least prac ticable adverse impact on the species and its habitat and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of pro posed monitoring plans where the pro posed activity may affect the avail ability of a species or stock for taking for subsistence uses. (c) Regulations will be established based on the best available informa tion. As new information is developed, through monitoring, reporting, or re search, the regulations may be modi fied, in whole or in part, after notice and opportunity for public review. § 216.106 Letter of Authorization. (a) A Letter of Authorization, which may be issued only to U.S. citizens, is required to conduct activities pursuant to any regulations established under § 216.105. Requests for Letters of Au thorization shall be submitted to the Director, Office of Protected Re sources. The information to be sub mitted in a request for an authoriza tion will be specified in the appropriate subpart to this part or may be obtained by writing to the above named person. (b) Issuance of a Letter of 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. (c) Letters of Authorization will specify the period of validity and any additional terms and conditions appro priate for the specific request. (d) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within 30 days of issuance. (e) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appro priate, if, after notice and opportunity for public comment, the Assistant Ad ministrator determines that: (1) The regulations prescribed are not being substantially complied with; or (2) The taking allowed is having, or may have, more than a negligible im pact on the species or stock or, where relevant, an unmitigable adverse im pact on the availability of the species or stock for subsistence uses. (f) The requirement for notice and opportunity for public review in § 216.106(e) shall not apply if the Assist ant Administrator determines that an emergency exists that poses a signifi cant risk to the wellbeing of the spe cies or stocks of marine mammals con cerned. (g) A violation of any of the terms and conditions of a Letter of Author ization or of the specific regulations shall 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 MMPA. § 216.107 Incidental harassment au thorization for Arctic waters. (a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under § 216.105, incidental harassment authorizations may be issued, fol lowing a 30-day public review period, to allowed activities that may result in only the incidental harassment of a small number of marine mammals. Each such incidental harassment au thorization shall set forth: (1) Permissible methods of taking by harassment; (2) Means of effecting the least prac ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of pro posed monitoring plans where the pro posed activity may affect the avail ability of a species or stock for taking for subsistence uses. (b) Issuance of an incidental harass ment authorization will be based on a determination that the number of ma rine mammals taken by harassment VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00096 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 87 National Marine Fisheries Service/NOAA, Commerce § 216.108 will be small, will have a negligible im pact on the species or stock of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses. (c) An incidental harassment author ization will be either issued or denied within 45 days after the close of the public review period. (d) Notice of issuance or denial of an incidental harassment authorization will be published in the FEDERAL REG ISTER within 30 days of issuance of a determination. (e) Incidental harassment authoriza tions will be valid for a period of time not to exceed 1 year but may be re newed for additional periods of time not to exceed 1 year for each reauthor ization. (f) An incidental harassment author ization shall be modified, withdrawn, or suspended if, after notice and oppor tunity for public comment, the Assist ant Administrator determines that: (1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or (2) The authorized taking, either in dividually or in combination with other authorizations, is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses. (g) The requirement for notice and opportunity for public review in para graph (f) of this section shall not apply if the Assistant Administrator deter mines that an emergency exists that poses a significant risk to the well being of the species or stocks of marine mammals concerned. (h) A violation of any of the terms and conditions of an incidental harass ment authorization shall subject the holder and/or any individual who is op erating under the authority of the holder’s incidental harassment author ization to penalties provided in the MMPA. § 216.108 Requirements for monitoring and reporting under incidental har assment authorizations for Arctic waters. (a) Holders of an incidental harass ment authorization in Arctic waters and their employees, agents, and des ignees must cooperate with the Na tional Marine Fisheries Service and other designated Federal, state, or local agencies to monitor the impacts of their activity on marine mammals. Unless stated otherwise within an inci dental harassment authorization, the holder of an incidental harassment au thorization effective in Arctic waters must notify the Alaska Regional Direc tor, National Marine Fisheries Service, of any activities that may involve a take by incidental harassment in Arc tic waters at least 14 calendar days prior to commencement of the activ ity. (b) Holders of incidental harassment authorizations effective in Arctic waters may be required by their au thorization to designate at least one qualified biological observer or another appropriately experienced individual to observe and record the effects of activi ties on marine mammals. The number of observers required for monitoring the impact of the activity on marine mammals will be specified in the inci dental harassment authorization. If ob servers are required as a condition of the authorization, the observer(s) must be approved in advance by the National Marine Fisheries Service. (c) The monitoring program must, if appropriate, document the effects (in cluding acoustical) on marine mam mals and document or estimate the ac tual level of take. The requirements for monitoring plans, as specified in the incidental harassment authoriza tion, may vary depending on the activ ity, the location, and the time. (d) Where the proposed activity may affect the availability of a species or stock of marine mammal for taking for subsistence purposes, proposed moni toring plans or other research pro posals must be independently peer-re viewed prior to issuance of an inci dental harassment authorization under this subpart. In order to complete the peer-review process within the time frames mandated by the MMPA for an VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00097 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 88 50 CFR Ch. II (10–1–22 Edition) Pt. 216, Fig 1 incidental harassment authorization, a proposed monitoring plan submitted under this paragraph must be sub mitted to the Assistant Administrator no later than the date of submission of the application for an incidental har assment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National Marine Fish eries Service will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, sched ule a workshop to review the plan. The applicant must submit a final moni toring plan to the Assistant Adminis trator prior to the issuance of an inci dental harassment authorization. (e) At its discretion, the National Marine Fisheries Service may place an observer aboard vessels, platforms, air craft, etc., to monitor the impact of ac tivities on marine mammals. (f)(1) As specified in the incidental harassment authorization, the holder of an incidental harassment authoriza tion for Arctic waters must submit re ports to the Assistant Administrator within 90 days of completion of any in dividual components of the activity (if any), within 90 days of completion of the activity, but no later than 120 days prior to expiration of the incidental harassment authorization, whichever is earlier. This report must include the following information: (i) Dates and type(s) of activity; (ii) Dates and location(s) of any ac tivities related to monitoring the ef fects on marine mammals; and (iii) Results of the monitoring activi ties, including an estimate of the ac tual level and type of take, species name and numbers of each species ob served, direction of movement of spe cies, and any observed changes or modifications in behavior. (2) Monitoring reports will be re viewed by the Assistant Administrator and, if determined to be incomplete or inaccurate, will be returned to the holder of the authorization with an ex planation of why the report is being re turned. If the authorization holder dis agrees with the findings of the Assist ant Administrator, the holder may re quest an independent peer review of the report. Failure to submit a complete and accurate report may result in a delay in processing future authoriza tion requests. (g) Results of any behavioral, feed ing, or population studies, that are conducted supplemental to the moni toring program, should be made avail able to the National Marine Fisheries Service before applying for an inci dental harassment authorization for the following year. Subparts J–X [Reserved] FIGURE 1 TO PART 216—NORTHERN FUR SEAL BREEDING AREAS (ROOKERIES) AND HAULING GROUNDS ON ST. GEORGE ISLAND, ALASKA VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00098 Fmt 8010 Sfmt 8002 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R