50 CFR § 219.1-219.38 - Regulations governing the taking and importing of marine mammals

295 National Marine Fisheries Service/NOAA, Commerce Pt. 219 (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 (i.e., mitigation); and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA will be published in the FEDERAL REGISTER within thirty days of a deter mination. § 218.238 Renewals and modifications of a Letter of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 218.237 for the activity identified in § 218.230 may be renewed or modified upon request by the appli cant, provided that: (1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those de scribed and analyzed for the regula tions in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and (2) NMFS determines that the miti gation, monitoring, and reporting measures required by the previous LOA(s) were implemented. (b) For LOA modification or renewal requests by the Navy that include changes to the activity or to the miti gation, monitoring, or reporting meas ures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that do not result in more than a minor change in the total estimated number of takes (or distribu tion by species or stock or years), NMFS may publish notification of a planned LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit public comment be fore issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 218.237 may be modi fied by NMFS under the following cir cumstances: (1) Adaptive management. After con sulting with the Navy regarding the practicability of the modifications, NMFS may modify (including adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reason able likelihood of more effectively ac complishing the goals of the mitiga tion and monitoring. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA include: (A) Results from the Navy’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; or (C) Any information that reveals ma rine mammals may have been taken in a manner, extent, or number not au thorized by the regulations in this sub part or subsequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no tice of planned LOA in the FEDERAL REGISTER and solicit public comment. (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 218.237, an LOA may be modified without prior no tice or opportunity for public com ment. Notice would be published in the FEDERAL REGISTER within thirty days of the action. PART 219—REGULATIONS GOV ERNING THE TAKING AND IM PORTING OF MARINE MAM MALS Subpart A—Taking Marine Mammals Inci dental to Southwest Fisheries Science Center Fisheries Research Sec. 219.1 Specified activity and specified geo graphical region. 219.2 Effective dates. 219.3 Permissible methods of taking. 219.4 Prohibitions. 219.5 Mitigation requirements. 219.6 Requirements for monitoring and re porting. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00305 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 296 50 CFR Ch. II (10–1–22 Edition) § 219.1 219.7 Letters of Authorization. 219.8 Renewals and modifications of Letters of Authorization. 219.9–219.10 [Reserved] Subpart B–C [Reserved] Subpart D—Taking Marine Mammals Inci dental to Northeast Fisheries Science Center Fisheries Research in the Atlan tic Coast Region 219.31 Specified activity and specified geo graphical region. 219.32 Effective dates. 219.33 Permissible methods of taking. 219.34 Prohibitions. 219.35 Mitigation requirements. 219.36 Requirements for monitoring and re porting. 219.37 Letters of Authorization. 219.38 Renewals and modifications of Let ters of Authorization. 219.39–219.40 [Reserved] AUTHORITY: 16 U.S.C. 1361 et seq. SOURCE: 86 FR 3868, Jan. 15, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At 86 FR 3868, Jan. 15, 2021, part 219 was added, effective Jan. 15, 2021, through Jan. 15, 2026. Subpart A—Taking Marine Mam mals Incidental to Southwest Fisheries Science Center Fish eries Research § 219.1 Specified activity and specified geographical region. (a) Regulations in this subpart apply only to the National Marine Fisheries Service’s (NMFS) Southwest Fisheries Science Center (SWFSC) and those per sons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the areas outlined in paragraph (b) of this section and that occurs incidental to research survey program operations. (b) The taking of marine mammals by SWFSC may be authorized in a Let ter of Authorization (LOA) only if it occurs within the California Current Ecosystem (CCE) or Antarctic Marine Living Resources Ecosystem (AMLR). § 219.2 Effective dates. Regulations in this subpart are effec tive from January 15, 2021 through Jan uary 15, 2026. § 219.3 Permissible methods of taking. Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.7, the Holder of the LOA (hereinafter ‘‘SWFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.1(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled-out pinnipeds and by Level A harassment, serious injury, or mor tality associated with use of fisheries research gear, provided the activity is in compliance with all terms, condi tions, and requirements of the regula tions in this subpart and the appro priate LOA. § 219.4 Prohibitions. (a) Notwithstanding takings con templated in § 219.1 and authorized by a LOA issued under §§ 216.106 of this chap ter and 219.7, no person in connection with the activities described in § 219.1 may: (1) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 219.7; (2) Take any marine mammal not specified in such LOA; (3) Take any marine mammal speci fied in such LOA in any manner other than as specified; (4) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (5) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. (b) [Reserved] § 219.5 Mitigation requirements. When conducting the activities iden tified in § 219.1(a), the mitigation meas ures contained in any LOA issued under §§ 216.106 of this chapter and 219.7 must be implemented. (a) General conditions. (1) SWFSC must take all necessary measures to coordinate and communicate in ad vance of each specific survey with the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00306 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 297 National Marine Fisheries Service/NOAA, Commerce § 219.5 National Oceanic and Atmospheric Ad ministration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and rel evant event-contingent decision-mak ing processes, are clearly understood and agreed upon. (2) SWFSC must coordinate and con duct briefings at the outset of each sur vey and as necessary between ship’s crew (Commanding Officer/master or designee(s), as appropriate) and sci entific party in order to explain re sponsibilities, communication proce dures, marine mammal monitoring protocol, and operational procedures. (3) SWFSC must coordinate as nec essary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA plat forms to ensure that requirements, procedures, and decision-making proc esses are understood and properly im plemented. (4) When deploying any type of sam pling gear at sea, SWFSC must at all times monitor for any unusual cir cumstances that may arise at a sam pling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment. (5) SWFSC must implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel. (b) Trawl survey protocols. (1) SWFSC must conduct trawl operations as soon as is practicable upon arrival at the sampling station. (2) SWFSC must initiate marine mammal watches (visual observation) at least 15 minutes prior to beginning of net deployment (or for the amount of time to travel between stations if less than 15 minutes) but must also conduct monitoring during any pre-set activities including CTD casts and plankton or bongo net hauls. (3) In the CCE, SWFSC must imple ment the move-on rule mitigation pro tocol, as described in this paragraph. If one or more marine mammals, with the exception of baleen whales, are ob served within 1 nautical mile (nmi) of the planned sampling location during the visual observation period, SWFSC must move on to another sampling lo cation. If, after moving on, marine mammals remain within 1 nmi, the SWFSC must move again or skip the station. SWFSC may use best profes sional judgment in making these deci sions but may not elect to conduct trawl survey activity when marine mammals other than baleen whales re main within the 1-nmi zone. (4) SWFSC must maintain visual monitoring effort during the entire pe riod of time that trawl gear is in the water (i.e., throughout gear deploy ment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC must take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judg ment in making this decision. (5) If trawling operations have been suspended because of the presence of marine mammals, SWFSC may resume trawl operations when practicable only when the animals are believed to have departed the 1 nmi area. SWFSC may use best professional judgment in mak ing this determination. (6) SWFSC must implement standard survey protocols to minimize potential for marine mammal interactions, in cluding maximum tow durations at target depth and maximum tow dis tance, and shall carefully empty the trawl as quickly as possible upon re trieval. Trawl nets must be cleaned prior to deployment. (7) SWFSC must install and use a ma rine mammal excluder device at all times when the Nordic 264 trawl net or any other net is used for which the de vice is appropriate. (8) SWFSC must install and use acoustic deterrent devices whenever any midwater trawl net is used, with two to four devices placed along the footrope and/or headrope of the net. SWFSC must ensure that the devices are operating properly before deploying the net. (c) Pelagic longline survey protocols. (1) SWFSC must deploy longline gear as soon as is practicable upon arrival at the sampling station. (2) SWFSC must initiate marine mammal watches (visual observation) VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00307 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 298 50 CFR Ch. II (10–1–22 Edition) § 219.6 no less than 15 minutes (or for the du ration of transit between locations, if shorter than 15 minutes) prior to both deployment and retrieval of longline gear. (3) SWFSC must implement the move-on rule mitigation protocol, as described in this paragraph. If one or more marine mammals, with the ex ception of groups of five or fewer Cali fornia sea lions, are observed within 1 nmi of the planned sampling location during the visual observation period, SWFSC must move on to another sam pling location. If, after moving on, ma rine mammals remain within 1 nmi, the SWFSC must move again or skip the station. SWFSC may use best pro fessional judgment in making these de cisions but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone. (4) SWFSC must maintain visual monitoring effort during the entire pe riod of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC must take the most appro priate action to avoid marine mammal interaction. SWFSC may use best pro fessional judgment in making this de cision. (5) If deployment or retrieval oper ations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the ani mals are believed to have departed the 1 nmi area. SWFSC may use best pro fessional judgment in making this de cision. (6) SWFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming. (d) Purse seine survey protocols. (1) SWFSC must conduct purse seine oper ations as soon as is practicable upon arrival at the sampling station. (2) SWFSC must conduct marine mammal watches (visual observation) prior to beginning of net deployment. (3) SWFSC must implement the move-on rule mitigation protocol, as described in this paragraph for use of purse seine gear. If one or more killer whales or small cetaceans (i.e., dolphin or porpoise) or five or more pinnipeds are observed within 500 m of the planned sampling location before set ting the purse seine gear, SWFSC must either remain onsite or move on to an other sampling location. If remaining onsite, the set must be delayed. If the animals depart or appear to no longer be at risk of interacting with the vessel or gear, a further observation period must be conducted. If no further obser vations are made or the animals still do not appear to be at risk of inter action, then the set may be made. If the vessel is moved to a different area, the move-on rule mitigation protocol would begin anew. If, after moving on, marine mammals remain at risk of interaction, the SWFSC must move again or skip the station. Marine mam mals that are sighted further than 500 m from the vessel must be monitored to determine their position and move ment in relation to the vessel to deter mine whether the move-on rule mitiga tion protocol should be implemented. SWFSC may use best professional judg ment in making these decisions. (4) SWFSC must maintain visual monitoring effort during the entire pe riod of time that purse seine gear is in the water (i.e., throughout gear deploy ment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC must take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judg ment in making this decision. (5) If purse seine operations have been suspended because of the presence of marine mammals, SWFSC may re sume seine operations when prac ticable only when the animals are be lieved to have departed the area. SWFSC may use best professional judg ment in making this determination. (6) If any cetaceans are observed in a purse seine net, SWFSC must imme diately open the net and free the ani mals. § 219.6 Requirements for monitoring and reporting. (a) Compliance coordinator. SWFSC must designate a compliance coordi nator who shall be responsible for en suring compliance with all require ments of any LOA issued pursuant to § 216.106 of this chapter and § 219.7 and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00308 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 299 National Marine Fisheries Service/NOAA, Commerce § 219.6 for preparing for any subsequent re quest(s) for incidental take authoriza tion. (b) Visual monitoring program. (1) Ma rine mammal visual monitoring must occur prior to deployment of trawl, hook and line, and purse seine gear, re spectively; throughout deployment of gear and active fishing of research gears (not including longline soak time); prior to retrieval of longline gear; and throughout retrieval of all research gear. (2) Marine mammal watches must be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated. (3) SWFSC must monitor any poten tial disturbance of pinnipeds on ice, paying particular attention to the dis tance at which different species of pinniped are disturbed. Disturbance must be recorded according to a three point scale representing increasing seal response to disturbance. (c) Training. (1) SWFSC must conduct annual training for all chief scientists and other personnel who may be re sponsible for conducting dedicated ma rine mammal visual observations to explain mitigation measures and moni toring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, com pletion of datasheets, and use of equip ment. SWFSC may determine the agen da for these trainings. (2) SWFSC must also dedicate a por tion of training to discussion of best professional judgment, including use in any incidents of marine mammal inter action and instructive examples where use of best professional judgment was determined to be successful or unsuc cessful. (3) SWFSC must coordinate with NMFS’ Northwest Fisheries Science Center (NWFSC) regarding surveys conducted in the CCE, such that train ing and guidance related to handling procedures and data collection is con sistent. (d) Handling procedures and data col lection. (1) SWFSC must implement standardized marine mammal han dling, disentanglement, and data col lection procedures. These standard pro cedures will be subject to approval by NMFS’s Office of Protected Resources (OPR). (2) When practicable, for any marine mammal interaction involving the re lease of a live animal, SWFSC must collect necessary data to facilitate a serious injury determination. (3) SWFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of con sciousness, remove fishing gear, return an individual to water, and log activi ties pertaining to the interaction. (4) SWFSC must record such data on standardized forms, which will be sub ject to approval by OPR. SWFSC must also answer a standard series of supple mental questions regarding the details of any marine mammal interaction. (e) Reporting. (1) SWFSC must report all incidents of marine mammal inter action to NMFS’s Protected Species In cidental Take database within 48 hours of occurrence and must provide supple mental information to OPR upon re quest. Information related to marine mammal interaction (animal captured or entangled in research gear) must in clude details of survey effort, full de scriptions of any observations of the animals, the context (vessel and condi tions), decisions made, and rationale for decisions made in vessel and gear handling. (2) SWFSC must submit annual re ports including: (i) An annual summary report to OPR not later than 90 days following the end of a given year. SWFSC must provide a final report within 30 days following resolution of comments on the draft report. (ii) These reports must contain, at minimum, the following: (A) Annual line-kilometers surveyed during which predominant active acoustic sources were used; (B) Summary information regarding use of all hook and line, purse seine, and trawl gear, including number of sets, hook hours, tows, etc., specific to each gear; (C) Accounts of all incidents of sig nificant marine mammal interactions, including circumstances of the event VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00309 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 300 50 CFR Ch. II (10–1–22 Edition) § 219.7 and descriptions of any mitigation pro cedures implemented or not imple mented and why, and, for interactions due to use of pelagic longline or purse seine, whether the move-on rule was waived due to the presence of five or fewer California sea lions; (D) Summary information related to any on-ice disturbance of pinnipeds, in cluding raw sightings data and the event-specific total counts of animals present, counts of reactions according to a three-point scale of response sever ity and numbers of takes (differen tiated by species and age class), the distance at which a pinniped is dis turbed and the closest point of ap proach for each disturbance event; (E) A written evaluation of the effec tiveness of SWFSC mitigation strate gies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; (F) Final outcome of serious injury determinations for all incidents of ma rine mammal interactions where the animal(s) were released alive; and (G) A summary of all relevant train ing provided by SWFSC and any coordi nation with NWFSC or NMFS’ West Coast Regional Office. (f) Reporting of injured or dead marine mammals. (1) In the event that per sonnel involved in the survey activities covered by the authorization discover an injured or dead marine mammal, SWFSC must report the incident to OPR and to the appropriate West Coast Regional Stranding Coordinator as soon as feasible. The report must in clude the following information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (2) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the author ization, SWFSC must report the inci dent to OPR and to the appropriate West Coast Regional Stranding Coordi nator as soon as feasible. The report must include the following informa tion: (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Vessel’s speed during and leading up to the incident; (iv) Vessel’s course/heading and what operations were being conducted (if ap plicable); (v) Status of all sound sources in use; (vi) Description of avoidance meas ures/requirements that were in place at the time of the strike and what addi tional measures were taken, if any, to avoid strike; (vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) imme diately preceding the strike; (viii) Estimated size and length of animal that was struck; (ix) Description of the behavior of the marine mammal immediately pre ceding and following the strike; (x) If available, description of the presence and behavior of any other ma rine mammals immediately preceding the strike; (xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, dis appeared); and (xii) To the extent practicable, pho tographs or video footage of the ani mal(s). § 219.7 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, SWFSC must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00310 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 301 National Marine Fisheries Service/NOAA, Commerce § § 219.9–219.10 SWFSC may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and ob tain a modification of the LOA as de scribed in § 219.8. (e) The LOA shall set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA shall be published in the FEDERAL REGISTER within thirty days of a deter mination. § 219.8 Renewals and modifications of Letters of Authorization. (a) An LOA issued under §§ 216.106 of this chapter and 219.7 for the activity identified in § 219.1(a) shall be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) OPR determines that the mitiga tion, monitoring, and reporting meas ures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis of the change, and solicit pub lic comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 219.7 for the activity identified in § 219.1(a) may be modified by OPR under the following cir cumstances: (1) OPR may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from SWFSC’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; (C) Any information that reveals ma rine mammals may have been taken in a manner; and extent or number not authorized by these regulations or sub sequent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the FEDERAL REG ISTER and solicit public comment. (2) If OPR determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to §§ 216.106 of this chapter and 219.7, an LOA may be modified without prior notice or oppor tunity for public comment. Notice would be published in the FEDERAL REGISTER within thirty days of the ac tion. § § 219.9–219.10 [Reserved] Subparts B–C [Reserved] VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00311 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 302 50 CFR Ch. II (10–1–22 Edition) § 219.31 Subpart D—Taking Marine Mam mals Incidental to Northeast Fisheries Science Center Fish eries Research in the Atlantic Coast Region SOURCE: 86 FR 58467, Oct. 21, 2021, unless otherwise noted. EFFECTIVE DATE NOTE: At, 86 FR 58467, Oct. 21, 2021, subpart D was added, effective Oct. 21, 2021, through Oct. 21, 2026 § 219.31 Specified activity and speci fied geographical region. (a) This subpart applies only to the National Marine Fisheries Service’s (NMFS) Northeast Fisheries Science Center and those persons it authorizes or funds to conduct activities in the area outlined in paragraph (b) of this section during research survey pro gram operations. (b) The incidental taking of marine mammals by Northeast Fisheries Science Center may be authorized in a Letter of Authorization (LOA) only if it occurs within the Northeast and Southeast Large Marine Ecosystem. § 219.32 Effective dates. Regulations in this subpart are effec tive from October 21, 2021, through Oc tober 21, 2026. § 219.33 Permissible methods of tak ing. Under LOAs issued pursuant to §§ 216.106 of this chapter and 219.37, the Holder of the LOA (hereinafter ‘‘NEFSC’’) may incidentally, but not intentionally, take marine mammals within the area described in § 219.31(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled out pinnipeds and by Level A harassment, serious injury, or mor tality associated with use of trawl, dredge, bottom and pelagic longline, gillnet, pot and trap, and fyke net gears, provided the activity is in com pliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA, pro vided the activity is in compliance with all terms, conditions, and require ments of the regulations in this sub part and the appropriate LOA. § 219.34 Prohibitions. Except for takings contemplated in § 219.33 and authorized by a LOA issued under §§ 216.106 of this chapter and 219.37, it shall be unlawful for any per son to do any of the following in con nection with the activities described in § 219.31: (a) Violate, or fail to comply with, the terms, conditions, and require ments of this subpart or a LOA issued under §§ 216.106 of this chapter and 219.37; (b) Take any marine mammal not specified in such LOA; (c) Take any marine mammal speci fied in such LOA in any manner other than as specified; (d) Take a marine mammal specified in such LOA if NMFS determines such taking results in more than a neg ligible impact on the species or stocks of such marine mammal; or (e) Take a marine mammal specified in such LOA if NMFS determines such taking results in an unmitigable ad verse impact on the species or stock of such marine mammal for taking for subsistence uses. § 219.35 Mitigation requirements. When conducting the activities iden tified in § 219.31(a), the mitigation measures contained in any LOA issued under §§ 216.106 of this chapter and 219.37 must be implemented. These mitigation measures must include but are not limited to: (a) General conditions. (1) NEFSC must take all necessary measures to coordinate and communicate in ad vance of each specific survey with the National Oceanic and Atmospheric Ad ministration’s (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and rel evant event-contingent decision-mak ing processes, are clearly understood and agreed upon; (2) NEFSC must coordinate and con duct briefings at the outset of each sur vey and as necessary between the ship’s crew (Commanding Officer/mas ter or designee(s), contracted vessel owners, as appropriate) and scientific VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00312 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 303 National Marine Fisheries Service/NOAA, Commerce § 219.35 party or in order to explain responsibil ities, communication procedures, ma rine mammal monitoring protocol, and operational procedures; (3) NEFSC must coordinate as nec essary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA plat forms to ensure that requirements, procedures, and decision-making proc esses are understood and properly im plemented; (4) When deploying any type of sam pling gear at sea, NEFSC must at all times monitor for any unusual cir cumstances that may arise at a sam pling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment; (5) All vessels must comply with ap plicable and relevant take reduction plans, including any required use of acoustic deterrent devices; (6) If a NEFSC vessel 65 ft (19.8 m) or longer is traveling within a North At lantic right whale Seasonal Manage ment Area, the vessel shall not exceed 10 knots in speed. When practicable, all NEFSC vessels traveling within a Dy namic Management Area or acous tically-triggered Slow Zone should not exceed 10 knots in speed; (7) All NEFSC vessels shall maintain a separation distance of 500 m and 100 m from a North Atlantic right whale and other large whales, respectively; (8) NEFSC must implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel; and (9) In the case of a bottlenose dolphin entanglement resulting in mortality and stock origin is unknown, the NEFSC must request and arrange for expedited genetic sampling for stock determination and photograph the dor sal fin and submit the image to the NMFS Regional Marine Mammal Stranding Coordinator for identifica tion/matching to bottlenose dolphins in the Bottlenose Dolphin Photo-identi fication Catalog. (b) Trawl survey protocols. (1) NEFSC must conduct trawl operations as soon as is practicable upon arrival at the sampling station; (2) NEFSC must initiate marine mammal watches (visual observation) 15 minutes prior to sampling within 1 nm of the site. Marine mammal watch es must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observa tion will be conducted using the naked eye and available vessel lighting; (3) NEFSC must implement the fol lowing ‘‘move-on rule.’’ If a marine mammal is sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, NEFSC may move the vessel away from the marine mammal to a different section of the sampling area if the ani mal appears to be at risk of interaction with the gear based on best profes sional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NMFS may use best professional judgement in making this decision; (4) NEFSC must maintain visual monitoring effort during the entire pe riod of time that trawl gear is in the water (i.e., throughout gear deploy ment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, NEFSC must take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judg ment in making this decision; (5) If trawling operations have been suspended because of the presence of marine mammals, NEFSC may resume only after there are no sightings for 15 minutes within 1nm of sampling loca tion; (6) If deploying bongo plankton or other small net prior to trawl gear, NEFSC will continue visual observa tions until trawl gear is ready to be de ployed; (7) NEFSC must implement standard survey protocols to minimize potential for marine mammal interactions. These protocols include, but are not limited to: (i) Standard tow durations of no more than 30 minutes at target depth for distances less than 3 nautical miles (nm). The exceptions to the 30-minute tow duration are the Atlantic Herring Acoustic Pelagic Trawl Survey and the Deepwater Biodiversity Survey where total time in the water (deployment, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00313 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 304 50 CFR Ch. II (10–1–22 Edition) § 219.35 fishing, and haul-back) is 40 to 60 min utes and 180 minutes, respectively; (ii) Trawl tow distances of no more than 3 nm; (iii) Bottom trawl tows will be made in either straight lines or following depth contours, whereas other tows targeting fish aggregations and deep water biodiversity tows may be made along oceanographic or bathymetric features; (iv) Sharp course changes will be avoided in all surveys; (v) Open the codend of the net close to the deck/sorting area to avoid dam age to animals that may be caught in gear; and (vi) Gear will be emptied as close to the deck/sorting area and as quickly as possible after retrieval; and (vii) Trawl nets must be cleaned prior to deployment. (c) Dredge survey protocols. (1) NEFSC must deploy dredge gear as soon as is practicable upon arrival at the sam pling station; (2) NEFSC must initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches must be conducted by scan ning the surrounding waters with the naked eye and binoculars (or monoc ular). During nighttime operations, visual observation must be conducted using the naked eye and available ves sel lighting; (3) NEFSC must implement the fol lowing ‘‘move-on rule.’’ If marine mammals are sighted within 1 nautical mile (nm) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may de cide to move again or to skip the sta tion’’; (4) NEFSC must maintain visual monitoring effort during the entire pe riod of time that dredge gear is in the water (i.e., throughout gear deploy ment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, NEFSC must take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judg ment in making this decision; (5) If dredging operations have been suspended because of the presence of marine mammals, NEFSC may resume operations when practicable only when the animals are believed to have de parted the area or after 15 minutes of no sightings. NEFSC may use best pro fessional judgment in making this de termination; and (6) NEFSC must carefully empty the dredge gear as close to the deck/sorting area and quickly as possible upon re trieval to determine if marine mam mals are present in the gear. (d) Bottom and pelagic longline survey protocols. (1) NEFSC must deploy longline gear as soon as is practicable upon arrival at the sampling station; (2) NEFSC must initiate marine mammal watches (visual observation) no less than fifteen minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches must be conducted by scanning the sur rounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observa tion must be conducted using the naked eye and available vessel light ing; (3) NEFSC must implement the fol lowing ‘‘move-on rule.’’ If marine mammals are sighted within 1 nautical mile (nmi) of the planned location in the 15 minutes before gear deployment, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear, based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, NEFSC may de cide to move again or to skip the sta tion; (4) For the Apex Predators Bottom Longline Coastal Shark Survey, if one or more marine mammals are observed within 1 nautical mile (nm) of the planned location in the 15 minutes be fore gear deployment, NEFSC must transit to a different section of the sampling area to maintain a minimum set distance of 1 nmi from the observed marine mammals. If, after moving on, marine mammals remain within 1 nmi, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00314 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 305 National Marine Fisheries Service/NOAA, Commerce § 219.35 NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nmi zone; (5) NEFSC must maintain visual monitoring effort during the entire pe riod of gear deployment or retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, NEFSC must take the most appro priate action to avoid marine mammal interaction. NEFSC may use best pro fessional judgment in making this de cision; (6) If deployment or retrieval oper ations have been suspended because of the presence of marine mammals, NEFSC may resume such operations after there are no sightings of marine mammals for at least 15 minutes with in 1nm area of sampling location. In no case will longlines be deployed if ani mals are considered at-risk of inter action; and (7) NEFSC must implement standard survey protocols, including maximum soak durations and a prohibition on chumming. (e) Gillnet survey protocols. (1) The NEFSC must deploy gillnet gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC must initiate marine mammal watches (visual observation) prior to both deployment and retrieval of the gillnet gear. When the vessel is on station during the soak, marine mammal watches must be conducted during the soak by scanning the sur rounding waters with the naked eye and binoculars (or monocular); (3) The NEFSC must implement the following ‘‘move-on rule.’’ If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially hired captains, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear based on best professional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC and/ or its cooperating institutions, con tracted vessels, or commercially-hired captains may decide to move again or to skip the station; (4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC must carefully retrieve the gear as quickly as possible. The NEFSC may use best professional judgment in making this decision; (5) The NEFSC must implement standard survey protocols, including continuously monitoring the gillnet gear during soak time and removing debris with each pass as the net is reset into the water to minimize bycatch; (6) The NEFSC must ensure that sur veys deploy acoustic pingers on gillnets in areas where required for commercial fisheries. NEFSC must en sure that the devices are operating properly before deploying the net; (7) NEFSC must maintain visual monitoring effort during the entire pe riod of gear deployment or retrieval. If marine mammals are sighted during the soak and are deemed at risk of interaction, the gillnet must be pulled. If fishing operations are halted, oper ations resume when animal(s) have not been sighted within 15 minutes or are determined to no longer be at risk. In other instances, the station is moved or cancelled; (8) NEFSC must ensure that cooper ating institutions, contracted vessels, or commercially-hired captains con ducting gillnet surveys adhere to moni toring and mitigation requirements and must include required protocols in all survey instructions, contracts, and agreements; (9) For the COASTSPAN gillnet sur veys, the NEFSC will actively monitor for potential bottlenose dolphin entan glements by hand-checking the gillnet every 30 minutes or if a disturbance in the net is observed. In the unexpected case of a bottlenose dolphin entangle ment resulting in mortality, NEFSC must request and arrange for expedited genetic sampling for stock determina tion. NEFSC must also photograph the dorsal fin and submit the image to the NMFS Southeast Stranding Coordi nator for identification/matching to bottlenose dolphins in the Mid-Atlantic VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00315 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 306 50 CFR Ch. II (10–1–22 Edition) § 219.35 Bottlenose Dolphin Photo-Identifica tion Catalog; (10) NEFSC must pull gear imme diately if disturbance in the nets is ob served. (11) All gillnets will be designed with minimal net slack and excess floating and trailing lines will be removed. (12) NEFSC will set only new or fully repaired gill nets, and modify nets to avoid large vertical gaps between float line and net as well as lead line and net when set, (13) On Observer Training cruises, acoustic pingers and weak links may be used on all gillnets consistent with the regulations and TRPs for commer cial fisheries. NEFSC must ensure that surveys deploy acoustic deterrent de vices on gillnets in areas where re quired for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net. (f) Pot and trap survey protocols. (1) The NEFSC must deploy pot gear as soon as is practicable upon arrival at the sampling station; (2) The NEFSC must initiate marine mammal watches (visual observation) no less than 15 minutes prior to both deployment and retrieval of the pot and trap gear. Marine mammal watch es must be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observa tion must be conducted using the naked eye and available vessel light ing; (3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must im plement the following ‘‘move-on’’ rule. If marine mammals are sighted within 1 nmi of the planned location in the 15 minutes before gear deployment, the NEFSC and/or its cooperating institu tions, contracted vessels, or commer cially-hired captains, as appropriate, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the ani mal appears to be at risk of interaction with the gear, based on best profes sional judgement. If, after moving on, marine mammals are still visible from the vessel, the NEFSC may decide to move again or to skip the station; (4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains must carefully retrieve the gear as quickly as possible. The NEFSC may use best professional judgment in mak ing this decision; and (5) The NEFSC must ensure that sur veys deploy gear fulfilling all pot/trap universal commercial gear configura tions such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fish eries. (g) Fyke net gear protocols. (1) NEFSC must conduct fyke net gear deploy ment as soon as is practicable upon ar rival at the sampling station; (2) NEFSC must visually survey the area prior to both deployment and re trieval of the fyke net gear. NEFSC must conduct monitoring and retrieval of the gear every 12- to 24-hour soak pe riod; (3) If marine mammals are in close proximity (approximately 328 feet [100 meters]) of the set location, NEFSC must determine if the net should be re moved from the water and the set loca tion should be moved using best profes sional judgment; (4) If marine mammals are observed to interact with the gear during the setting, NEFSC must remove the gear from the water and implement best handling practices; and (5) NEFSC must install and use a ma rine mammal excluder device at all times when using fyke nets equal or greater to 2 m. (h) Rotary screw trap gear protocols. (1) NEFSC must conduct rotary screw trap deployment as soon as is practicable upon arrival at the sampling station; (2) NEFSC must visually survey the area prior to both setting and retrieval of the rotary screw trap gear. If marine mammals are observed in the sampling area, NEFSC must suspend or delay the sampling. NEFSC may use best profes sional judgment in making this deci sion; (3) NEFSC must tend to the trap on a daily basis to monitor for marine mam mal interactions with the gear; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00316 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 307 National Marine Fisheries Service/NOAA, Commerce § 219.36 (4) If the rotary screw trap captures a marine mammal, NEFSC must remove gear and implement best handling practices. § 219.36 Requirements for monitoring and reporting. (a) Compliance coordinator. NEFSC shall designate a compliance coordi nator who shall be responsible for en suring compliance with all require ments of any LOA issued pursuant to § 216.106 of this chapter and § 219.7 and for preparing for any subsequent re quest(s) for incidental take authoriza tion. (b) Visual monitoring program. (1) Ma rine mammal visual monitoring must occur prior to deployment of beam, mid-water, and bottom trawl, bottom and pelagic longline, gillnet, fyke net, pot, trap, and rotary screw trap gear; throughout deployment of gear and ac tive fishing of all research gears; and throughout retrieval of all research gear; (2) Marine mammal watches must be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated; (3) NEFSC must monitor any poten tial disturbance of pinnipeds on ledges, paying particular attention to the dis tance at which different species of pinniped are disturbed. Disturbance must be recorded according to a three point scale of response to disturbance; and (4) The NEFSC must continue to con duct a local census of pinniped haulout areas prior to conducting any fisheries research in the Penobscot River estu ary. The NEFSC’s census reports must include an accounting of disturbance based on the three-point scale of re sponse severity metrics. (c) Training. (1) NEFSC must conduct annual training for all chief scientists and other personnel (including its co operating institutions, contracted ves sels, or commercially-hired captains) who may be responsible for conducting dedicated marine mammal visual ob servations to explain mitigation meas ures and monitoring and reporting re quirements, mitigation and monitoring protocols, marine mammal identifica tion, completion of datasheets, and use of equipment. NEFSC may determine the agenda for these trainings; (2) NEFSC must also dedicate a por tion of training to discussion of best professional judgment, including use in any incidents of marine mammal inter action and instructive examples where use of best professional judgment was determined to be successful or unsuc cessful; and (3) NEFSC must coordinate with NMFS’ Southeast Fisheries Science Center (SEFSC) regarding surveys con ducted in the southern portion of the Atlantic coast region, such that train ing and guidance related to handling procedures and data collection is con sistent. (d) Handling procedures and data col lection. (1) NEFSC must develop and implement standardized marine mam mal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS Office of Protected Resources (OPR); (2) When practicable, for any marine mammal interaction involving the re lease of a live animal, NEFSC must collect necessary data to facilitate a serious injury determination; (3) NEFSC must provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring/or not bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction; and (4) NEFSC must record such data on standardized forms, which will be sub ject to approval by OPR. The data must be collected at a sufficient level of detail (e.g., circumstances leading to the interaction, extent of injury, condi tion upon release) to facilitate serious injury determinations under the MMPA. (e) Reporting. (i) NEFSC must report all incidents of marine mammal inter action to NMFS’ Protected Species In cidental Take database within 48 hours of occurrence. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00317 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 308 50 CFR Ch. II (10–1–22 Edition) § 219.36 the animals, the context (vessel and conditions), decisions made and ration ale for decisions made in vessel and gear handling. (ii) The NEFSC must submit annual reports. The period of reporting will be one year beginning at the date of issuance of the LOA. NEFSC must sub mit an annual summary report to OPR not later than ninety days following the end of the reporting period. These reports must contain, at minimum, the following: (A) Annual line-kilometers surveyed during which the EK60, ME70, DSM300 (or equivalent sources) were predomi nant; (B) Summary information regarding use of the following: All trawl gear, all longline gear, all gillnet gear, all dredge gear, fyke net gear, and rotary screw trap gear (including number of sets, hook hours, tows, and tending fre quency specific to each gear type); (C) Accounts of all incidents of ma rine mammal interactions, including circumstances of the event and descrip tions of any mitigation procedures im plemented or not implemented and why; (D) Summary information from the pinniped haulout censuses in the and summary information related to any disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response sever ity, and distance of closest approach; (E) A written evaluation of the effec tiveness of NEFSC mitigation strate gies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; (F) Final outcome of serious injury determinations for all incidents of ma rine mammal interactions where the animal(s) were released alive; and (G) A summary of all relevant train ing provided by the NEFSC and any co ordination with the NMFS Southeast Fishery Science Center, the Greater Atlantic Regional Fisheries Office, and the Southeast Regional Office. (iii) Reporting of North Atlantic right whales and injured or dead ma rine mammals: (A) In the event that the NEFSC ob serves a North Atlantic right whale during a survey, they must report the sighting as soon as possible to 866–755– 6622 if the sighting occurs in the North east region (VA to ME) or to 877– WHALE–HELP if the sighting occurs in the Southeast region (FL to NC). The NEFSC must also report the sighting to the U.S. Coast Guard via Channel 16. (B) In the event that the NEFSC dis covers an injured or dead marine mam mal, NEFSC must report the incident to OPR (PR.ITP.MonitoringReports@noaa.gov), 866–755–6622 in the Northeast region (VA to ME) and 877–WHALE–HELP in the Southeast region (FL to NC). (C) In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a pro hibited manner, NEFSC must imme diately cease such activity until such time as an appropriate decision regard ing activity continuation can be made by the NEFSC Director (or designee). The incident must be immediately re ported to the contacts in 6(c)(ii). OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are nec essary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The report must include the following information: (i) Time, date, and location (latitude/ longitude) of the first discovery (and updated location information if known and applicable); (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Condition of the animal(s) (in cluding carcass condition if the animal is dead); (iv) Observed behaviors of the ani mal(s), if alive; (v) If available, photographs or video footage of the animal(s); and (vi) General circumstances under which the animal was discovered. (3) In the event of a ship strike of a marine mammal by any vessel involved in the activities covered by the author ization, NEFSC must report the inci dent to OPR and to the appropriate Re gional Stranding Network as soon as feasible. The report must include the following information: VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00318 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 309 National Marine Fisheries Service/NOAA, Commerce § 219.38 (i) Time, date, and location (latitude/ longitude) of the incident; (ii) Species identification (if known) or description of the animal(s) in volved; (iii) Vessel’s speed during and leading up to the incident; (iv) Vessel’s course/heading and what operations were being conducted (if ap plicable); (v) Status of all sound sources in use; (vi) Description of avoidance meas ures/requirements that were in place at the time of the strike and what addi tional measures were taken, if any, to avoid strike; (vii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility) imme diately preceding the strike; (viii) Estimated size and length of animal that was struck; (ix) Description of the behavior of the marine mammal immediately pre ceding and following the strike; (x) If available, description of the presence and behavior of any other ma rine mammals immediately preceding the strike; (xi) Estimated fate of the animal (e.g., dead, injured but alive, injured and moving, blood or tissue observed in the water, status unknown, dis appeared); and (xii) To the extent practicable, pho tographs or video footage of the ani mal(s). § 219.37 Letters of Authorization. (a) To incidentally take marine mammals pursuant to these regula tions, NEFSC must apply for and ob tain an LOA. (b) An LOA, unless suspended or re voked, may be effective for a period of time not to exceed the expiration date of these regulations. (c) If an LOA expires prior to the ex piration date of these regulations, NEFSC may apply for and obtain a re newal of the LOA. (d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, NEFSC must apply for and obtain a modification of the LOA as described in § 219.38. (e) The LOA must set forth: (1) Permissible methods of incidental taking; (2) Means of effecting the least prac ticable adverse impact (i.e., mitigation) on the species, its habitat, and on the availability of the species for subsist ence uses; and (3) Requirements for monitoring and reporting. (f) Issuance of the LOA must be based on a determination that the level of taking will be consistent with the find ings made for the total taking allow able under these regulations. (g) Notice of issuance or denial of an LOA must be published in the FEDERAL REGISTER within 30 days of a deter mination. § 219.38 Renewals and modifications of Letters of Authorization. (a) A LOA issued under §§ 216.106 of this chapter and 219.37 for the activity identified in § 219.31(a) must be renewed or modified upon request by the appli cant, provided that: (1) The proposed specified activity and mitigation, monitoring, and re porting measures, as well as the antici pated impacts, are the same as those described and analyzed for these regu lations (excluding changes made pursu ant to the adaptive management provi sion in paragraph (c)(1) of this section); and (2) OPR determines that the mitiga tion, monitoring, and reporting meas ures required by the previous LOA under these regulations were imple mented. (b) For an LOA modification or re newal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total esti mated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the FED ERAL REGISTER, including the associ ated analysis of the change, and solicit public comment before issuing the LOA. (c) An LOA issued under §§ 216.106 of this chapter and 219.37 for the activity VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00319 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 310 50 CFR Ch. II (10–1–22 Edition) § § 219.39–219.40 identified in § 219.31(a) may be modified by OPR under the following cir cumstances: (1) OPR may modify (including aug ment) the existing mitigation, moni toring, or reporting measures (after consulting with NEFSC regarding the practicability of the modifications) if doing so creates a reasonable likeli hood of more effectively accomplishing the goals of the mitigation and moni toring set forth in the preamble for these regulations. (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report ing measures in an LOA: (A) Results from NEFSC’s moni toring from the previous year(s); (B) Results from other marine mam mal and/or sound research or studies; and (C) Any information that reveals ma rine mammals may have been taken in a manner, extent or number not au thorized by these regulations or subse quent LOAs. (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the FEDERAL REG ISTER and solicit public comment. (2) If OPR determines that an emer gency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.32(b), a LOA may be modified without prior notice or opportunity for public comment. Notification would be published in the FEDERAL REGISTER within 30 days of the action. § § 219.39–219.40 [Reserved] PART 220 [RESERVED] PART 221—CONDITIONS AND PRE SCRIPTIONS IN FERC HYDRO POWER LICENSES Subpart A—General Provisions Sec. 221.1 What is the purpose of this part, and to what license proceedings does it apply? 221.2 What terms are used in this part? 221.3 How are time periods computed? 221.4 What deadlines apply to the trial-type hearing and alternatives processes? Subpart B—Hearing Process REPRESENTATIVES 221.10 Who may represent a party, and what requirements apply to a representative? DOCUMENT FILING AND SERVICE 221.11 What are the form and content re quirements for documents under this subpart? 221.12 Where and how must documents be filed? 221.13 What are the requirements for service of documents? INITIATION OF HEARING PROCESS 221.20 What supporting information must NOAA provide with its preliminary con ditions or prescriptions? 221.21 How do I request a hearing? 221.22 How do I file a notice of intervention and response? 221.23 Will hearing requests be consoli dated? 221.24 Can a hearing process be stayed to allow for settlement discussions? 221.25 How will NOAA respond to any hear ing requests? 221.26 What will the Office of Habitat Con servation do with any hearing requests? 221.27 What regulations apply to a case re ferred for a hearing? GENERAL PROVISIONS RELATED TO HEARINGS 221.30 What will the Department of Com merce’s designated ALJ office do with a case referral? 221.31 What are the powers of the ALJ? 221.32 What happens if the ALJ becomes un available? 221.33 Under what circumstances may the ALJ be disqualified? 221.34 What is the law governing ex parte communications? 221.35 What are the requirements for mo tions? PREHEARING CONFERENCES AND DISCOVERY 221.40 What are the requirements for pre hearing conferences? 221.41 How may parties obtain discovery of information needed for the case? 221.42 When must a party supplement or amend information it has previously pro vided? 221.43 What are the requirements for writ ten interrogatories? 221.44 What are the requirements for deposi tions? 221.45 What are the requirements for re quests for documents or tangible things or entry on land? VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00320 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