[Federal Register Volume 61, Number 70 (Wednesday, April 10, 1996)]
[Rules and Regulations]
[Pages 15884-15891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-8494]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
15 CFR Part 902
50 CFR Parts 216 and 228
[Docket No. 950504128-6085-02; I.D. 031095A]
RIN 0648-AG80
Small Takes of Marine Mammals; Harassment Takings Incidental to
Specified Activities in Arctic Waters; Regulation Consolidation; Update
of Office of Management and Budget (OMB) Approval Numbers
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule.
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SUMMARY: The Marine Mammal Protection Act (MMPA) Amendments of 1994
established an expedited process by which citizens of the United States
can apply for an authorization to take incidentally, but not
intentionally, small numbers of marine mammals by harassment. This rule
sets forth the process for applying for, and obtaining, an
authorization in Arctic waters. This rule also makes minor
modifications to the existing regulations that clarify the requirements
for petitioning for and obtaining a small take authorization.
This rule also updates OMB approval numbers for application and
reports of incidental small takes.
EFFECTIVE DATE: This rule is effective on May 10, 1996.
ADDRESSES: A copy of the Environmental Assessment (EA), and/or the
results of a February 8-9, 1994 meeting cited in the preamble may be
obtained by writing to the Chief, Marine Mammal Division, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226 or by telephoning the person
below (see FOR FURTHER INFORMATION CONTACT).
Comments regarding the burden-hour estimate or any other aspect of
the collection of information requirement contained in this rule should
be sent to the above individual and to the Office of Information and
Regulatory Affairs, OMB, Attention: NOAA Desk Officer, Washington, D.C.
20503.
FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of
Protected Resources, NMFS, (301) 713-2055.
SUPPLEMENTARY INFORMATION:
Background
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.), directs
the Secretary of Commerce to allow, upon request by U.S. citizens
engaged in a specific activity (other than commercial fishing) in a
specified geographical region, the incidental, but not intentional,
taking of small numbers of marine mammals, if certain findings are made
and regulations are issued. Under the MMPA, the term ``taking'' means
to harass, hunt, capture or kill. Pursuant to part 228 of title 50,
permission may be granted for periods up to 5 years if NMFS finds,
after notice and opportunity for public comment, that the taking will
have a negligible impact on the species or stock(s) of marine mammals
and will not have an unmitigable adverse impact on the availability of
the species or stock(s) for subsistence uses. In addition, NMFS must
prescribe activity-specific regulations that include permissible
methods of taking and other means 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, mating grounds and areas of similar significance. These
regulations must include requirements pertaining to the monitoring and
reporting of such taking.
The Marine Mammal Protection Act Amendments of 1994 amended section
101(a)(5) of the MMPA to establish an expedited process by which
citizens of the United States can apply for an authorization to
incidentally take small numbers of marine mammals by harassment. It
established specific time limits for public notice and comment on any
requests for authorization under this new provision.
The legislative history notes that NMFS should use the general
rulemaking authority available under section 112 of the MMPA to
establish a process for granting authorization in the case of small
takes by harassment in the Arctic Ocean (H.R. Rep. No. 439, 103d Cong.,
2d Sess. 29, 30 (Mar. 21, 1994)). As a result of that mandate, NMFS has
expedited this rulemaking process in order to have incidental
harassment regulations effective for Arctic activities prior to the
1996 open water season in the Beaufort Sea.
This rule will result in a more streamlined and cost-effective
method for obtaining small take by incidental harassment authorizations
in Arctic waters, without lessening the MMPA's protection of species
and stocks of marine mammals. This rule does not cover incidental
harassment authorizations for non-Arctic waters. A final rule, which
will include an expanded discussion on what constitutes harassment for
purposes of issuing authorizations under this subpart, remains under
development. Until that final rule is published, NMFS will continue to
process and grant incidental harassment authorizations under the
statutory provisions and requirements.
Comments and Responses
On May 31, 1995 (60 FR 28379), NMFS issued a proposed rule to
modify regulations found at 50 CFR part 228, subpart A to include the
simplified process for authorizing the incidental taking of small
numbers of marine mammals by harassment without the need to issue
specific regulations governing the taking of marine mammals for each
and every activity. The proposed rule set forth: (1) The process for
obtaining an authorization;
[[Page 15885]]
(2) the specific time limits imposed by the statute for NMFS review and
publication, and public notice and comment, on any requests for
authorization that would be granted under this paragraph; and (3) the
requirements for scientific peer review of an applicant's monitoring
plans and submission of a plan of cooperation (if the subject activity
may affect the availability of a species or stock of marine mammal for
taking for subsistence purposes). The proposed rule also made minor
changes to the existing regulations to clarify the requirements for
petitioning and obtaining a small take authorization under section
101(a)(5)(A) of the MMPA.
Based on a request from the U.S. Navy (Navy), the comment period
was extended until October 16, 1995 (60 FR 35891, July 12, 1995).
During the comment period, NMFS received eight letters commenting on
the proposed rule. An additional 41 letters were received in response
to an Internet message but without review of the proposed rule.
Comments regarding incidental harassment authorizations in the Arctic
are discussed below. Response to comments outside the scope of Arctic
activities are reserved for a future rule.
Arctic Subsistence Concerns
Comment: The USCG recommends that Sec. 228.4(a)(7) (revised as
Sec. 216.104(a)(7)) be modified to clarify that the only subsistence
uses that are at issue are those defined in the MMPA.
Response: The term ``subsistence'' that applies to this rule, was
previously defined in Sec. 216.3; no changes to that definition are
considered necessary at this time. That definition makes any additional
clarifying language unnecessary.
Arctic Subsistence Concerns-Plans of Cooperation
Comment: The USCG believes that submitting a plan of cooperation is
not required by the MMPA, and, while it may be an ideal way to
implement the statutory requirements for determining impacts to Arctic
subsistence users, such an extensive plan of cooperation is not
necessary in every case.
Response: NMFS agrees that a formal plan of cooperation may not be
necessary for all activities that might result in the incidental
harassment of marine mammal species that are also sought for
subsistence purposes. As a result of the comment, NMFS has modified the
final rule accordingly. However, in order for NMFS to determine that
there will not be an unmitigable adverse impact on the availability of
marine mammals for taking for subsistence purposes, the information
items specified in Sec. 216.104(a)(11) (previously Sec. 228.4(a)(11))
will still need to be provided. If neither a plan of cooperation has
been submitted nor meetings with subsistence communities have been
scheduled, and if during the comment period evidence is provided
indicating that an adverse impact to subsistence needs will result from
the activity, an authorization may be delayed to resolve this
disagreement.
Comment: The AEWC noted that the plan of cooperation submitted by
an applicant must be based on mitigation measures that have been
approved by the affected communities and their representatives. The
MMPA requires NMFS to prescribe, where applicable, the measures NMFS
determines are necessary to ensure that there is no unmitigable adverse
impact on the availability of the species or stock for subsistence
uses. As a result, the commenter believes, NMFS should take a more
proactive role in developing plans of cooperation; consult with the
subsistence community as directed by the NOAA-AEWC Cooperative
Agreement for bowheads; and resolve disagreements between parties.
Response: While it is preferable for a plan of cooperation to
contain mitigation measures that are agreed to by the involved parties,
a final determination on necessary marine mammal mitigation measures
remains with NMFS. It is not mandatory under the MMPA that a plan of
cooperation meet with total approval by affected Alaskan communities
and their representatives. However, NMFS emphasizes that plans of
cooperation should contain more than a simple schedule of meetings with
affected communities. With little time provided by the MMPA to make a
determination on whether to issue an authorization, unless applicants
have either met with Native American groups or have scheduled a meeting
with them to discuss the plan of cooperation prior to submission of an
application (with its plan of cooperation), processing the application
may be delayed. The final rule clarifies this meeting requirement and
requires the draft plan of cooperation to be made available to affected
communities at the same time the application is submitted to NMFS.
However, the MMPA does not, as the commenter suggests, require NMFS to
resolve disagreements related to the plan of cooperation prior to
issuance of an authorization. Initiation of the NOAA-AEWC Cooperation
Agreement consultation process begins when NMFS forwards a proposed
authorization to the AEWC.
Because the rule requires an applicant to submit either a plan of
cooperation for any Arctic activities that will have an impact on those
species or stocks of marine mammals that are also sought for
subsistence uses, or a description of planned mitigation measures,
Native Americans (and others) may submit comments to NMFS on the
adequacy of a plan of cooperation or planned mitigation measures and
any disagreements the two parties may have on necessary mitigation.
NMFS will give full consideration to these comments, to any previously
agreed measures for the protection of marine mammals, and the success
of those measures, when determining appropriate mitigation measures for
a new authorization.
Arctic Subsistence Concerns-Monitoring Plans
Comment: The USCG questions the requirement for peer-review of
monitoring plans under the provision for activity-specific regulations,
since the statute only mentions it under provisions for incidental
harassment authorizations.
Response: Paragraph 216.105(b)(3) (previously Sec. 228.5(b)(3))
does not mandate peer-review of monitoring plans; it only notes that
under activity-specific regulations a peer-review process may be
established, if warranted. The need for peer-review would be determined
through notice and comment on the proposed rule for the applicant's
activity.
Comment: The USCG believes that Sec. 228.8(d) (previously
Sec. 216.108(d)) places NMFS in control of the independent peer-review
process called for by the statute. However, they believe that Federal
agencies should have the discretion to use the NMFS peer-review process
or to develop their own process.
Response: Although NMFS remains responsible for accepting or
rejecting a monitoring plan, NMFS does not control the peer-review
process but only serves as its facilitator. While NMFS would not object
to a different process for peer-review of monitoring plans, applicants
should recognize that a peer-review process may take some time to
establish independently. As a result, under an independent peer-review
process, NMFS could no longer assure the applicant that the statutory
time requirements for issuing an authorization would be met.
Comment: The AEWC also noted the need for reliable scientific
research on interactions between marine mammals and oil and gas
exploration activities. In
[[Page 15886]]
the interest of promoting both reliability and consistency in this
research, the AEWC recommended that the process for monitoring and
reporting agreed to at the February 1994 meeting between NMFS, AEWC,
the North Slope Borough and the oil and gas industry, be incorporated
into the regulations. In addition, the AEWC wanted to see the results
of that meeting discussed in the preamble to the final regulations.
Response: NMFS agrees that, to the extent possible, a prior year's
research results should be reviewed by the present-year, peer-review
committee. This would provide some consistency in research objectives.
However, because the referenced 1994 meeting was specific to Beaufort
Sea oil and gas exploration, incorporating those agreements (e.g.,
number and independence of reviewers) into these regulations would
limit flexibility to modify them for different activities and changing
conditions, and readers would be unlikely to benefit sufficiently from
summarizing the meeting, detailed discussion of the results of that
meeting are not warranted in these procedural regulations. A copy of
the final minutes to the February 8-9, 1994 meeting is available from
NMFS (see ADDRESSES) and will be available for reference for future
U.S. Arctic oil and gas activities.
Comment: The North Slope Borough notes that there are species in
addition to bowhead whales in Arctic waters and NMFS should more
clearly define how the authorization process applies to beluga whales
and the seal species found in Arctic waters. The commenter also wants
the agency to consult directly with the Alaska Beluga Whale Committee
and the Indigenous People's Council for Marine Mammals to establish
mechanisms for subsistence user involvement in decisions affecting
these species.
Response: When an applicant requests an authorization for the
incidental harassment of marine mammals, that person is expected to
apply for all marine mammals that can be reasonably expected to be
taken by harassment and/or be affecting those species availability for
subsistence purposes. The MMPA requires NMFS to announce receipt of an
application, issuance of a proposed authorizations, and to request
public comment in the Federal Register, newspapers of general
circulation, appropriate electronic media and to all locally affected
communities. NMFS will also provide copies of the proposed
authorization for review directly to those organizations that NMFS
knows to have an interest.
Discussion
Background and rationale on processing applications for Arctic
activities, monitoring and reporting requirements and peer review of
monitoring plans, were published on May 31, 1995 (60 FR 28379) and are
not repeated here. Reviewers should refer to the notice of proposed
rulemaking for additional information.
Changes From the Proposed Rule
1. Based upon comment, a requirement is being added that applicants
with activities in the Arctic that might result in a take of species or
stocks that are also taken for subsistence purposes, need to either
schedule a meeting prior to submitting the application or meet prior to
the close of the comment period and provide the affected subsistence
community with a draft plan of cooperation.
2. A new definition for the term ``Arctic waters'' is provided.
3. A new paragraph has been added at Sec. 216.104(a)(5) to include
in one location information requested on assessing incidental takes of
marine mammals by the applicant's activity.
4. The mandatory provision that applicants affecting Arctic
subsistence needs must provide a plan of cooperation has been modified.
5. The interim rule clarifies that reports are required to be
submitted, within 90 days of completion of any individual components of
the activity (if any), or 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.
6. The interim rule clarifies that incidental harassment
authorizations will be valid for a period of time not to exceed 1 year
but may be renewed for additional periods of time not to exceed 1 year
for each reauthorization.
National Environmental Policy Act
The amended regulations in Part 216 subpart I of chapter 50
implement section 101(a)(5)(D) of the MMPA, as it pertains to
incidental harassment authorizations in Arctic waters. This rule,
mandated by the 1994 Amendments, provides a mechanism to authorize the
incidental, but not intentional, taking by harassment of small numbers
of marine mammals by U.S. citizens engaged in a specified activity in a
specified geographic region. The AA has determined, based upon a
programmatic EA prepared for this action under NEPA, that
implementation of these general regulations will not have a significant
impact on the human environment. As a result of this determination, an
environmental impact statement is not required. A copy of the EA is
available upon request (see ADDRESSES).
In addition, while each proposed incidental harassment
authorization will be reviewed independently to determine its impact on
the human environment, NMFS believes that, because the finding required
for incidental harassment authorizations is that the taking (by
harassment) would not result in any serious injury or death to a marine
mammal, would have no more than a negligible impact on marine mammals
and their habitat, and would not have an unmitigable adverse impact on
the availability of the species or stock(s) for subsistence uses, the
majority of the authorizations should be ``categorically excluded'' (as
defined in 40 CFR 1508.4) from the preparation of either environmental
impact statements or EAs under NEPA and section 6.02.c.3(i) of NOAA
Administrative Order 216-6 for Environmental Review Procedures
(published August 6, 1991).
Classification
This action has been determined to be not significant for purposes
of E.O. 12866.
The Assistant General Counsel for Legislation and Regulation of the
Department of Commerce certified to the Small Business Administration
at the proposed rule stage that, if adopted, this action would not have
a significant economic impact on a substantial number of small entities
since it would simply establish an expedited process for the review and
issuance of authorizations for the incidental taking of small numbers
of marine mammals by harassment while conducting activities (other than
commercial fishing) in and near marine waters. Without authorization,
the taking of marine mammals, even by harassment, is prohibited.
This rule contains collection-of-information requirements subject
to the Paperwork Reduction Act and which has been approved by OMB under
OMB Control No. 0648-0151. Notwithstanding any other provision of law,
no person is required to respond to nor shall a person be subject to a
penalty for failure to comply with a collection of information subject
to the requirements of the Paperwork Reduction Act unless that
collection of information displays a currently valid OMB control
number.
The average burden for this collection is estimated to be
approximately 214 hours per activity (range 80-483 hours depending upon
complexity) for applications and 32.5 hours per activity
[[Page 15887]]
(range 16-80 hours) for reporting. These hours include the time for
gathering and maintaining the data needed, and completing and reviewing
the collection of information including annual reports. It does not
include time for monitoring the activity by observers. Send comments
regarding these reporting burden estimates or any other aspect of the
collections of information, including suggestions for reducing the
burdens, to NMFS and OMB (see ADDRESSES).
Under NOAA Administrative Order 205-11, 7.01, dated December 17,
1990, the Under Secretary for Oceans and Atmosphere has delegated
authority to sign material for publication in the Federal Register to
the Assistant Administrator for Fisheries, NOAA.
List of Subjects
15 CFR Part 902
Reporting and recordkeeping requirements.
50 CFR Part 216
Administrative practice and procedure, Imports, Indians, Marine
mammals, Penalties, Reporting and recordkeeping requirements,
Transportation.
50 CFR Part 228
Marine mammals, Reporting and recordkeeping requirements.
Dated: March 28, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For the reasons set out in the preamble, 15 CFR chapter IX and
under the authority of 16 U.S.C 1361 et seq. 50 CFR chapter II are
amended as follows:
15 CFR Chapter IX
PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS
1. The authority citation for part 902 continues to read as
follows:
Authority: 44 U.S.C, 3501 et seq.
2. In Sec. 902.1, paragraph (b) the table is amended by removing in
the left column under 50 CFR, the entries ``228.4'', ``228.6'',
``228.14'', ``228.25'', ``228.37'', and ``228.55'', and in the right
column, in corresponding positions, the control numbers ``-0151''; and
by adding, in numerical order, the following entries to read as
follows:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
Current OMB
control
CFR part or section where the information collection number (all
requirement is located numbers
begin with
0648-)
------------------------------------------------------------------------
* * * * *
50 CFR
* * * * *
216.104.................................................. -0151
216.106.................................................. -0151
216.108.................................................. -0151
216.114.................................................. -0151
216.125.................................................. -0151
216.145.................................................. -0151
216.155.................................................. -0151
* * * * *
------------------------------------------------------------------------
50 CFR Chapter II
PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
3. Subpart B (Sec. 228.11 through Sec. 228.14), subpart C
(Sec. 228.21 through Sec. 228.26), subpart E (Sec. 228.41 through
Sec. 228.48), and subpart F (Sec. 228.51 through Sec. 228.57) of part
228 are redesignated as subpart J (Sec. 216.111 through Sec. 216.114),
subpart K (Sec. 216.121 through Sec. 216.126), subpart M (Sec. 216.141
through Sec. 216.148) and subpart N (Sec. 216.151 through
Sec. 216.157), respectively, in part 216.
PART 228--[REMOVED]
4. Part 228 is removed.
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
5. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
6. In Sec. 216.3, a new definition for ``Director, Office of
Protected Resources is added, in alphabetical order, to read as
follows:
Sec. 216.3 Definitions.
* * * * *
Director, Office of Protected Resources means Director, Office of
Protected Resources, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910.
* * * * *
7. A new subpart I is added to read as follows:
Subpart I--General Regulations Governing Small Takes of Marine Mammals
Incidental to Specified Activities
Sec.
216.101 Purpose.
216.102 Scope.
216.103 Definitions.
216.104 Submission of requests.
216.105 Specific regulations.
216.106 Letter of authorization.
216.107 Incidental harassment authorization for Arctic waters.
216.108 Requirements for monitoring and reporting under incidental
harassment authorizations for Arctic waters.
Subpart I--General Regulations Governing Small Takes of Marine
Mammals Incidental to Specified Activities
Sec. 216.101 Purpose.
The regulations in this subpart implement section 101(a)(5) (A)
through (D) of the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon
request, the incidental, but not intentional, taking of small numbers
of marine mammals by U.S. citizens who engage in a specified activity
(other than commercial fishing) within a specified geographic region.
Sec. 216.102 Scope.
The taking of small numbers of marine mammals under section
101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be
allowed only if the National Marine Fisheries Service:
(a) Finds, based on the best scientific evidence available, that
the total taking by the specified activity during the specified time
period will have a negligible impact on species or stock of marine
mammal(s) and will not have an unmitigable adverse impact on the
availability of those species or stocks of marine mammals intended for
subsistence uses;
(b) Prescribes either regulations under Sec. 216.106, or
requirements and conditions contained within an incidental harassment
authorization issued under Sec. 216.107, setting forth permissible
methods of taking and other means of effecting the least practicable
adverse impact on the species or stock of marine mammal and its habitat
and on the availability of the species or stock of marine mammal for
subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance; and
(c) Prescribes either regulations or requirements and conditions
contained within an incidental harassment authorization, as
appropriate, pertaining to the monitoring and reporting of such taking.
The specific regulations governing certain specified activities are
contained in subsequent subparts of this part.
[[Page 15888]]
Sec. 216.103 Definitions.
In addition to definitions contained in the MMPA, and in
Sec. 216.3, and unless the context otherwise requires, in subsequent
subparts to this part:
Arctic waters means the marine and estuarine waters north of
60 deg. N. lat.
Citizens of the United States and U.S. citizens mean individual
U.S. citizens or any corporation or similar entity if it is organized
under the laws of the United States or any governmental unit defined in
16 U.S.C. 1362(13). U.S. Federal, state and local government agencies
shall also constitute citizens of the United States for purposes of
this part.
Incidental harassment, incidental taking and incidental, but not
intentional, taking all mean an accidental taking. This does not mean
that the taking is unexpected, but rather it includes those takings
that are infrequent, unavoidable or accidental. (A complete definition
of ``take'' is contained in Sec. 216.3).
Negligible impact is an impact resulting from the specified
activity that cannot be reasonably expected to, and is not reasonably
likely to, adversely affect the species or stock through effects on
annual rates of recruitment or survival.
Small numbers means a portion of a marine mammal species or stock
whose taking would have a negligible impact on that species or stock.
Specified activity means any activity, other than commercial
fishing, that takes place in a specified geographical region and
potentially involves the taking of small numbers of marine mammals.
Specified geographical region means an area within which a
specified activity is conducted and that has certain biogeographic
characteristics.
Unmitigable adverse impact means an impact resulting from the
specified activity:
(1) That is likely to reduce the availability of the species to a
level insufficient for a harvest to meet subsistence needs by:
(i) Causing the marine mammals to abandon or avoid hunting areas;
(ii) Directly displacing subsistence users; or
(iii) Placing physical barriers between the marine mammals and the
subsistence hunters; and
(2) That cannot be sufficiently mitigated by other measures to
increase the availability of marine mammals to allow subsistence needs
to be met.
Sec. 216.104 Submission of requests.
(a) In order for the National Marine Fisheries Service to consider
authorizing the taking by U.S. citizens of small numbers of marine
mammals incidental to a specified activity (other than commercial
fishing), or to make a finding that an incidental take is unlikely to
occur, a written request must be submitted to the Assistant
Administrator. All requests must include the following information for
their activity:
(1) A detailed description of the specific activity or class of
activities that can be expected to result in incidental taking of
marine mammals;
(2) The date(s) and duration of such activity and the specific
geographical region where it will occur;
(3) The species and numbers of marine mammals likely to be found
within the activity area;
(4) A description of the status, distribution, and seasonal
distribution (when applicable) of the affected species or stocks of
marine mammals likely to be affected by such activities;
(5) The type of incidental taking authorization that is being
requested (i.e., takes by harassment only; takes by harassment, injury
and/or death) and the method of incidental taking;
(6) By age, sex, and reproductive condition (if possible), the
number of marine mammals (by species) that may be taken by each type of
taking identified in paragraph (a)(5) of this section, and the number
of times such takings by each type of taking are likely to occur;
(7) The anticipated impact of the activity upon the species or
stock of marine mammal;
(8) The anticipated impact of the activity on the availability of
the species or stocks of marine mammals for subsistence uses;
(9) The anticipated impact of the activity upon the habitat of the
marine mammal populations, and the likelihood of restoration of the
affected habitat;
(10) The anticipated impact of the loss or modification of the
habitat on the marine mammal populations involved;
(11) The availability and feasibility (economic and technological)
of equipment, methods, and manner of conducting such activity or other
means of effecting the least practicable adverse impact upon the
affected species or stocks, their habitat, and on their availability
for subsistence uses, paying particular attention to rookeries, mating
grounds, and areas of similar significance;
(12) Where the proposed activity would take place in or near a
traditional Arctic subsistence hunting area and/or may affect the
availability of a species or stock of marine mammal for Arctic
subsistence uses, the applicant must submit either a plan of
cooperation or information that identifies what measures have been
taken and/or will be taken to minimize any adverse effects on the
availability of marine mammals for subsistence uses. A plan must
include the following:
(i) A statement that the applicant has notified and provided the
affected subsistence community with a draft plan of cooperation;
(ii) A schedule for meeting with the affected subsistence
communities to discuss proposed activities and to resolve potential
conflicts regarding any aspects of either the operation or the plan of
cooperation;
(iii) A description of what measures the applicant has taken and/or
will take to ensure that proposed activities will not interfere with
subsistence whaling or sealing; and
(iv) What plans the applicant has to continue to meet with the
affected communities, both prior to and while conducting the activity,
to resolve conflicts and to notify the communities of any changes in
the operation;
(13) The suggested means of accomplishing the necessary monitoring
and reporting that will result in increased knowledge of the species,
the level of taking or impacts on populations of marine mammals that
are expected to be present while conducting activities and suggested
means of minimizing burdens by coordinating such reporting requirements
with other schemes already applicable to persons conducting such
activity. Monitoring plans should include a description of the survey
techniques that would be used to determine the movement and activity of
marine mammals near the activity site(s) including migration and other
habitat uses, such as feeding. Guidelines for developing a site-
specific monitoring plan may be obtained by writing to the Director,
Office of Protected Resources; and
(14) Suggested means of learning of, encouraging, and coordinating
research opportunities, plans, and activities relating to reducing such
incidental taking and evaluating its effects.
(b)(1) The Assistant Administrator shall determine the adequacy and
completeness of a request and, if determined to be adequate and
complete, will begin the public review process by publishing in the
Federal Register either:
(i) A proposed incidental harassment authorization; or
(ii) A notice of receipt of a request for the implementation or
reimplementation of regulations governing the incidental taking.
(2) Through notice in the Federal Register, newspapers of general
[[Page 15889]]
circulation, and appropriate electronic media in the coastal areas that
may be affected by such activity, NMFS will invite information,
suggestions, and comments for a period not to exceed 30 days from the
date of publication in the Federal Register. All information and
suggestions will be considered by the National Marine Fisheries Service
in developing, if appropriate, the most effective regulations governing
the issuance of letters of authorization or conditions governing the
issuance of an incidental harassment authorization.
(3) Applications that are determined to be incomplete or
inappropriate for the type of taking requested, will be returned to the
applicant with an explanation of why the application is being returned.
(c) The Assistant Administrator shall evaluate each request to
determine, based upon the best available scientific evidence, whether
the taking by the specified activity within the specified geographic
region will have a negligible impact on the species or stock and, where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses. If the
Assistant Administrator finds that the mitigating measures would render
the impact of the specified activity negligible when it would not
otherwise satisfy that requirement, the Assistant Administrator may
make a finding of negligible impact subject to such mitigating measures
being successfully implemented. Any preliminary findings of
``negligible impact'' and ``no unmitigable adverse impact'' shall be
proposed for public comment along with either the proposed incidental
harassment authorization or the proposed regulations for the specific
activity.
(d) If, subsequent to the public review period, the Assistant
Administrator finds that the taking by the specified activity would
have more than a negligible impact on the species or stock of marine
mammal or would have an unmitigable adverse impact on the availability
of such species or stock for subsistence uses, the Assistant
Administrator shall publish in the Federal Register the negative
finding along with the basis for denying the request.
Sec. 216.105 Specific regulations.
(a) For all petitions for regulations under this paragraph,
applicants must provide the information requested in Sec. 216.104(a) on
their activity as a whole, which includes, but is not necessarily
limited to, an assessment of total impacts by all persons conducting
the activity.
(b) For allowed activities that may result in incidental takings of
small numbers of marine mammals by harassment, serious injury, death or
a combination thereof, specific regulations shall be established for
each allowed activity that set forth:
(1) Permissible methods of taking;
(2) Means of effecting the least practicable adverse impact on the
species and its habitat and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for the independent peer-review of proposed monitoring
plans where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses.
(c) Regulations will be established based on the best available
information. As new information is developed, through monitoring,
reporting, or research, the regulations may be modified, in whole or in
part, after notice and opportunity for public review.
Sec. 216.106 Letter of Authorization.
(a) A Letter of Authorization, which may be issued only to U.S.
citizens, is required to conduct activities pursuant to any regulations
established under Sec. 216.105. Requests for Letters of Authorization
shall be submitted to the Director, Office of Protected Resources. The
information to be submitted in a request for an authorization will be
specified in the appropriate subpart to this part or may be obtained by
writing to the above named person.
(b) Issuance of a Letter of Authorization will be based on a
determination that the level of taking will be consistent with the
findings made for the total taking allowable under the specific
regulations.
(c) Letters of Authorization will specify the period of validity
and any additional terms and conditions appropriate for the specific
request.
(d) Notice of issuance of all Letters of Authorization will be
published in the Federal Register within 30 days of issuance.
(e) Letters of Authorization shall be withdrawn or suspended,
either on an individual or class basis, as appropriate, if, after
notice and opportunity for public comment, the Assistant Administrator
determines that:
(1) The regulations prescribed are not being substantially complied
with; or
(2) The taking allowed is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(f) The requirement for notice and opportunity for public review in
Sec. 216.106(e) shall not apply if the Assistant Administrator
determines that an emergency exists that poses a significant risk to
the wellbeing of the species or stocks of marine mammals concerned.
(g) A violation of any of the terms and conditions of a Letter of
Authorization or of the specific regulations shall subject the Holder
and/or any individual who is operating under the authority of the
Holder's Letter of Authorization to penalties provided in the MMPA.
Sec. 216.107 Incidental harassment authorization for Arctic waters.
(a) Except for activities that have the potential to result in
serious injury or mortality, which must be authorized under
Sec. 216.105, incidental harassment authorizations may be issued,
following a 30-day public review period, to allowed activities that may
result in only the incidental harassment of a small number of marine
mammals. Each such incidental harassment authorization shall set forth:
(1) Permissible methods of taking by harassment;
(2) Means of effecting the least practicable adverse impact on the
species, its habitat, and on the availability of the species for
subsistence uses; and
(3) Requirements for monitoring and reporting, including
requirements for the independent peer-review of proposed monitoring
plans where the proposed activity may affect the availability of a
species or stock for taking for subsistence uses.
(b) Issuance of an incidental harassment authorization will be
based on a determination that the number of marine mammals taken by
harassment will be small, will have a negligible impact on the species
or stock of marine mammal(s), and will not have an unmitigable adverse
impact on the availability of species or stocks for taking for
subsistence uses.
(c) An incidental harassment authorization will be either issued or
denied within 45 days after the close of the public review period.
(d) Notice of issuance or denial of an incidental harassment
authorization will be published in the Federal Register within 30 days
of issuance of a determination.
(e) Incidental harassment authorizations will be valid for a period
of time not to exceed 1 year but may be
[[Page 15890]]
renewed for additional periods of time not to exceed 1 year for each
reauthorization.
(f) An incidental harassment authorization shall be modified,
withdrawn, or suspended if, after notice and opportunity for public
comment, the Assistant Administrator determines that:
(1) The conditions and requirements prescribed in the authorization
are not being substantially complied with; or
(2) The authorized taking, either individually or in combination
with other authorizations, is having, or may have, more than a
negligible impact on the species or stock or, where relevant, an
unmitigable adverse impact on the availability of the species or stock
for subsistence uses.
(g) The requirement for notice and opportunity for public review in
paragraph (f) of this section shall not apply if the Assistant
Administrator determines that an emergency exists that poses a
significant risk to the well-being of the species or stocks of marine
mammals concerned.
(h) A violation of any of the terms and conditions of an incidental
harassment authorization shall subject the holder and/or any individual
who is operating under the authority of the holder's incidental
harassment authorization to penalties provided in the MMPA.
Sec. 216.108 Requirements for monitoring and reporting under
incidental harassment authorizations for Arctic waters.
(a) Holders of an incidental harassment authorization in Arctic
waters and their employees, agents, and designees must cooperate with
the National Marine Fisheries Service and other designated Federal,
state, or local agencies to monitor the impacts of their activity on
marine mammals. Unless stated otherwise within an incidental harassment
authorization, the holder of an incidental harassment authorization
effective in Arctic waters must notify the Alaska Regional Director,
National Marine Fisheries Service, of any activities that may involve a
take by incidental harassment in Arctic waters at least 14 calendar
days prior to commencement of the activity.
(b) Holders of incidental harassment authorizations effective in
Arctic waters may be required by their authorization to designate at
least one qualified biological observer or another appropriately
experienced individual to observe and record the effects of activities
on marine mammals. The number of observers required for monitoring the
impact of the activity on marine mammals will be specified in the
incidental harassment authorization. If observers are required as a
condition of the authorization, the observer(s) must be approved in
advance by the National Marine Fisheries Service.
(c) The monitoring program must, if appropriate, document the
effects (including acoustical) on marine mammals and document or
estimate the actual level of take. The requirements for monitoring
plans, as specified in the incidental harassment authorization, may
vary depending on the activity, the location, and the time.
(d) Where the proposed activity may affect the availability of a
species or stock of marine mammal for taking for subsistence purposes,
proposed monitoring plans or other research proposals must be
independently peer-reviewed prior to issuance of an incidental
harassment authorization under this subpart. In order to complete the
peer-review process within the time frames mandated by the MMPA for an
incidental harassment authorization, a proposed monitoring plan
submitted under this paragraph must be submitted to the Assistant
Administrator no later than the date of submission of the application
for an incidental harassment authorization. Upon receipt of a complete
monitoring plan, and at its discretion, the National Marine Fisheries
Service will either submit the plan to members of a peer review panel
for review or within 60 days of receipt of the proposed monitoring
plan, schedule a workshop to review the plan. The applicant must submit
a final monitoring plan to the Assistant Administrator prior to the
issuance of an incidental harassment authorization.
(e) At its discretion, the National Marine Fisheries Service may
place an observer aboard vessels, platforms, aircraft, etc., to monitor
the impact of activities on marine mammals.
(f)(1) As specified in the incidental harassment authorization, the
holder of an incidental harassment authorization for Arctic waters must
submit reports to the Assistant Administrator within 90 days of
completion of any individual components of the activity (if any),
within 90 days of completion of the activity, but no later than 120
days prior to expiration of the incidental harassment authorization,
whichever is earlier. This report must include the following
information:
(i) Dates and type(s) of activity;
(ii) Dates and location(s) of any activities related to monitoring
the effects on marine mammals; and
(iii) Results of the monitoring activities, including an estimate
of the actual level and type of take, species name and numbers of each
species observed, direction of movement of species, and any observed
changes or modifications in behavior.
(2) Monitoring reports will be reviewed by the Assistant
Administrator and, if determined to be incomplete or inaccurate, will
be returned to the holder of the authorization with an explanation of
why the report is being returned. If the authorization holder disagrees
with the findings of the Assistant Administrator, the holder may
request an independent peer review of the report. Failure to submit a
complete and accurate report may result in a delay in processing future
authorization requests.
(g) Results of any behavioral, feeding, or population studies, that
are conducted supplemental to the monitoring program, should be made
available to the National Marine Fisheries Service before applying for
an incidental harassment authorization for the following year.
8. In the list below, for each section indicated in the left
column, remove the reference indicated in the middle column from
wherever it appears in the section, and add the reference to the
section indicated in the right column.
------------------------------------------------------------------------
Section Remove Add
------------------------------------------------------------------------
Subpart J
Sec. 216.113 Sec. 228.13(a) Sec. 216.113(a)
Sec. 216.114 Sec. 228.14(c) Sec. 216.114(c)
Subpart K
Sec. 216.123 Sec. 228.6 Sec. 216.106
Sec. 216.123 Sec. 228.21 Sec. 216.121
Sec. 216.124 Sec. 228.23 Sec. 216.123
Sec. 216.124 Sec. 228.6 Sec. 216.106
Sec. 216.124 Sec. 228.21 Sec. 216.121
Sec. 216.125 Sec. 228.6 Sec. 216.106
Sec. 216.125 Sec. 228.21 Sec. 216.121
Sec. 216.126 Sec. 228.6 Sec. 216.106
Sec. 216.126 Sec. 228.26(b) Sec. 216.126(b)
Sec. 216.126 Sec. 228.21 Sec. 216.121
Subpart M
Sec. 216.143 Sec. 228.41 Sec. 216.141
Sec. 216.143 Sec. 228.45(b)(1) Sec. 216.145(b)(1)
Sec. 216.144 Sec. 228.43 Sec. 216.143
Sec. 216.144 Sec. 228.6 Sec. 216.106
Sec. 216.144 Sec. 228.46 Sec. 216.146
Sec. 216.146 Sec. 228.41 Sec. 216.141
Sec. 216.146 Sec. 228.6 Sec. 216.106
Sec. 216.147 Sec. 228.6 Sec. 216.106
Sec. 216.147 Sec. 228.41 Sec. 216.141
Sec. 216.147 Sec. 228.45(d) Sec. 216.145(d)
Sec. 216.147 Sec. 228.41(b) Sec. 216.141(b)
Sec. 216.147 Sec. 228.43(b) Sec. 216.143(b)
Sec. 216.148 Sec. 228.6 Sec. 216.106
Sec. 216.148 Sec. 228.47 Sec. 216.147
Sec. 216.148 Sec. 228.41(b) Sec. 216.141(b)
Subpart N
Sec. 216.153 Sec. 228.6 Sec. 216.106
Sec. 216.153 Sec. 228.51(a) Sec. 216.151(a)
Sec. 216.154 Sec. 228.53 Sec. 216.153
Sec. 216.154 Sec. 228.6 Sec. 216.106
Sec. 216.154 Sec. 228.56 Sec. 216.156
Sec. 216.156 Sec. 228.6 Sec. 216.106
Sec. 216.156 Sec. 228.51(a) Sec. 216.151(a)
[[Page 15891]]
Sec. 216.156 Sec. 228.55(f) Sec. 216.155(f) and (g)
and (g)
Sec. 216.156 Sec. 228.51(b) Sec. 216.151(b)
Sec. 216.156 Sec. 228.53(b) Sec. 216.153(b)
Sec. 216.156 Sec. 228.55(g) Sec. 216.155(g)
Sec. 216.157 Sec. 228.6 Sec. 216.106
Sec. 216.157 Sec. 228.46 Sec. 216.146
Sec. 216.157 Sec. 228.51 Sec. 216.151
------------------------------------------------------------------------
9. In part 216, subpart L (Sec. 216.131 through Sec. 216.138),
subpart O (Sec. 216.161 through Sec. 216.169), subpart P (Sec. 216.170
through Sec. 216.179), subpart Q (Sec. 216.180 through Sec. 216.189)
and subpart R (Sec. 216.190 through Sec. 216.199) are added and
reserved.
[FR Doc. 96-8494 Filed 4-9-96; 8:45 am]
BILLING CODE 3510-22-P
