[Federal Register Volume 60, Number 104 (Wednesday, May 31, 1995)]
[Proposed Rules]
[Pages 28379-28386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13265]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 228
[Docket No. 950504128-5128-01; I.D. 031095A]
RIN 0648-AG80
Small Takes of Marine Mammals; Harassment Takings Incidental to
Specified Activities
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Proposed rule; request for comments.
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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
proposed rule sets forth the process for applying for and obtaining an
authorization; the time limits set by the statute for NMFS review,
publication, and public notice and comment on any applications for
authorization that would be granted; and the requirements for
submission of a plan of cooperation and for scientific peer review of
an applicant's monitoring plans (if that activity may affect the
availability of a species or stock of marine mammal for taking for
subsistence purposes). This rule also proposes changes to the existing
regulations to clarify the requirements for obtaining a small take
authorization. If implemented, this rule would result in a more
streamlined and cost-effective method for obtaining small take by
incidental harassment authorizations, without lessening the MMPA's
[[Page 28380]] protection of species and stocks of marine mammals.
DATES: Comments must be received no later than July 17, 1995.
ADDRESSES: Written comments on the proposed rule should be addressed to
Chief, Marine Mammal Division, Office of Protected Resources, National
Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD
20910-3226. A copy of the Environmental Assessment (EA) may be obtained
by writing to this address or by telephoning the contact listed below.
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, Office of Management and Budget (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.), as
enacted in 1981, 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
implementing regulations published on May 18, 1982 (47 FR 21248),
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.
In 1986, the MMPA and the Endangered Species Act (16 U.S.C. 1531 et
seq.) were amended to authorize incidental takings of depleted,
endangered, or threatened marine mammals. Prior to the 1986 amendments,
section 101(a)(5) of the MMPA applied only to non-depleted marine
mammals. On September 29, 1989 (54 FR 40338), NMFS and the U.S. Fish
and Wildlife Service, jointly published regulations expanding the scope
of the 1982 regulations to include depleted marine mammals, revising
the definition of negligible impact, and adding a new definition for
unmitigable adverse impact.
However, concern was expressed by some during Congressional
oversight on the MMPA that the regulatory process for authorizing small
takes remained lengthy, cumbersome, and with little correlation to the
level of interaction between the activity and marine mammals or the
degree of potential harm to the species or stock. The net result, these
commenters believed, was that scarce Government resources were being
misallocated and that compliance with the MMPA was not encouraged
because of the length of time necessary to obtain an authorization.
On April 30, 1994, the President signed Public Law 103-238, the
Marine Mammal Protection Act Amendments of 1994. One part of this law
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 which would be granted under this new
provision. The legislative history noted however, that in some
instances, requests will be made for authorizations identical to ones
issued in the previous year. According to the legislative history, in
such circumstances Congress expects NMFS to act expeditiously in
complying with the notice and comment requirements. There is no need in
such a case, the legislative history notes, for NMFS to use the full
120 days allowed. The legislative history also 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)).
Proposed Action
NMFS is proposing to modify existing 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 sets
forth: (1) The process for obtaining an authorization; (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 incorporates the
definition of ``harassment'' added by statute and would make minor
changes to the existing regulations to clarify the requirements for
obtaining a small take authorization.
Discussion
Scope of Incidental Harassment Authorizations
In the 1994 Amendments to the MMPA, Congress defined the term
``harassment'' as: ``any act of pursuit, torment, or annoyance, which
(i) has the potential to injure a marine mammal or marine mammal stock
in the wild'' (Level A harassment); or ``(ii) has the potential to
disturb a marine mammal or marine mammal stock in the wild by causing
disruption of behavioral patterns, including, but not limited to,
migration, breathing, nursing, breeding, feeding, or sheltering''
(Level B harassment). For the purpose of incidental harassment
authorizations, NMFS proposes to limit the use of those authorizations
for harassment involving the ``potential to injure'' to only incidental
harassment that may involve non-serious injury. Serious injury for
marine mammals, such as permanent hearing or eyesight loss, or severe
trauma, could lead fairly quickly to the animal's death. NMFS does not
believe that Congress intended to allow ``incidental harassment''
takings to include injuries that are likely to result in mortality,
even where such incidental harassment involves only small numbers of
marine mammals. Therefore, if the review of an application for
incidental harassment indicates that there is a potential for serious
injury or death, NMFS proposes that it would either (1) determine that
the potential for serious injury can be negated through mitigation
requirements that could be required under the authorization or (2) deny
the incidental harassment authorization and require [[Page 28381]] the
applicant to petition for a regulated small take authorization under 50
CFR 228.5. For example, if an application indicates that an acoustic
source at its maximum output level has the potential to cause a
temporary threshold shift in a marine mammal's hearing ability, that
taking would constitute a ``harassment'' take, since the animal's
hearing ability would recover and the section 101(a)(5)(D) application
would be appropriate. However, if the acoustic source at its maximum
level had the potential to cause a permanent threshold shift in a
marine mammal's hearing ability, that activity would be considered to
be capable of causing serious injury to a marine mammal and would
therefore not be appropriate for an incidental harassment
authorization.
Applications
New section 101(a)(5)(D)(iii) of the MMPA requires NMFS to publish
a proposed authorization not later than 45 days after receiving an
application under this subparagraph. However, NMFS does not publish
notices, but rather files notices with the Office of the Federal
Register (OFR) for publication. Actual publication normally occurs in
the Federal Register 3 to 4 days after receipt at the OFR. The
occurrence of weekends and holidays after the receipt date of the
application at NMFS, coupled with the days between delivery of a notice
of proposed authorization at the OFR and the actual date of publication
in the Federal Register, often would compress NMFS' review time to less
than 30 working days. As a result, in order for NMFS to accept an
incidental harassment application, such application must be complete,
accurate (to the extent possible), and address in some detail the
information items requested as part of the application. If an
application does not provide documentary evidence sufficient for NMFS
to make a preliminary determination that the activity is likely to
result in only a small take (by harassment) of marine mammals and have
no more than a negligible impact on the species or stocks impacted or
their habitat, NMFS will return the application as incomplete.
NMFS will make a final determination on the application within 45
days after the close of the public review period and will publish
notice of the final disposition in the Federal Register within 30 days
of issuance of that determination.
Also, since the MMPA limits the comment period for incidental
harassment authorizations to a maximum of 30 days and a final decision
on the application to 45 days after the close of the public comment
period, NMFS expects that Federal, federally-funded, or federally-
permitted applicants will have completed their responsibilities under
the National Environmental Policy Act (NEPA) and its implementing
regulations (40 CFR parts 1500-1508) prior to submitting an application
for an incidental harassment authorization.
Monitoring Plans
Consistent with the requirements of the MMPA, NMFS proposes to
require applicants to monitor the impact of their activity on marine
mammals and to submit monitoring plans for all applications for
incidental harassment authorizations under part 228. Without
appropriate monitoring, NMFS would be unable to ensure that
authorizations over time have only a negligible impact on species or
stocks of marine mammals and no unmitigable adverse impact on the
availability of species or stocks for taking for subsistence uses. NMFS
recognizes however, that in some cases the level of monitoring
necessary to ensure that the requirements of this section of the MMPA
are met may be low. In such cases, NMFS would strive to seek a balance
between the need to ensure, through monitoring, that the activity is
not having more than a negligible impact on the marine mammals or on
the health and stability of the ecosystem of which marine mammals are a
part and the logistical burden of the monitoring requirements on the
applicant.
Under these proposed regulations, when applying for an incidental
harassment authorization under 50 CFR 228.7, the applicant would be
required to include a site-specific plan to monitor the effects on
stocks of marine mammals that are expected to be present while
conducting activities. This plan, whose adequacy must be approved by
NMFS, at a minimum, would have to include information regarding: (1)
The survey techniques, and/or other methods to be used, to determine
whether the behavior (including, if appropriate, vocalizations) of
marine mammals near the activity site is being affected, and (2) how
the number of marine mammals affected (i.e., taken by harassment) by
the planned activity would be determined, including the expected
precision of that estimated number. If requested, NMFS would provide
guidelines to applicants for development of site-specific monitoring
plans.
Requirements for Activities Impacting Arctic Subsistence Needs
Section 101(a)(5)(D)(ii)(III) of the MMPA requires
independent peer review of proposed monitoring plans or other
research proposals where the proposed activity may affect the
availability of a species or stock for taking for subsistence uses *
* *.
To minimize potential conflicts among user groups over whether a
proposed Monitoring Plan (Plan) is adequate for determining the effects
of the proposed activity on stocks of marine mammals, the applicant
would be required to submit a draft Plan either along with an
incidental harassment application or no later than 120 days prior to
the date an incidental harassment authorization is expected to be
issued. Upon receipt of the draft Plan, NMFS would establish an
independent peer-review panel to critique the Plan and, if appropriate,
to provide NMFS and the applicant with suggestions for improvement of
monitoring. It is anticipated that the applicant would consider any
comments and recommendations made by the panel or NMFS prior to
submitting a final proposed Plan to NMFS. This final plan should be
submitted a minimum of 30 days prior to the date an incidental
harassment authorization is expected to be issued.
As an example of a peer-reviewed process, applicants involved in
oil and gas exploration activities in the Beaufort Sea cooperate with
NMFS and North Slope residents and usually a workshop is scheduled to
peer-review their Plan. That procedure is likely to continue under this
rule. For this activity, the workshop normally includes 6-10 experts in
the fields of population ecology, survey design, acoustics, and marine
mammal behavior. Panelists are selected by NMFS, in consultation with
the Marine Mammal Commission (MMC), the Alaskan Eskimo Whaling
Commission (AEWC) and/or other Alaskan native organizations as
appropriate, and the applicant. Selected panelists are experts who are
not currently employed or contracted by either the affected Alaskan
native organization or the applicant. Normally, the workshop is chaired
by either a NMFS or MMC employee and minutes from the workshop are
prepared within 2 weeks by a rapporteur, assigned to assist the Chair,
and made available to the general public upon request.
If a plan proposes to continue, without significant modification,
the approved plan from the previous year, the Assistant Administrator
for Fisheries, NOAA (AA) may waive the requirement for peer-review.
This determination would be announced in either the proposed
authorization notice for an incidental harassment authorization or the
notice of issuance [[Page 28382]] of an annual Letter of Authorization
(LOA) under 50 CFR 228.6 and would be made available to the general
public.
Also, when applying for either an incidental harassment
authorization or an LOA, for an activity that has the potential to
affect the availability of a species or stock of marine mammal for
taking by subsistence uses, the applicant would also be required to
submit a plan of cooperation that identifies what measures have been
taken and would be taken to minimize the adverse effects on the
availability of marine mammals for subsistence users. This cooperation
plan would have to include: (1) A statement that the applicant has
notified and met with the affected subsistence communities to discuss
proposed activities and to resolve potential conflicts regarding
siting, timing and methods of operation; (2) a description of what
measures the applicant has taken and would take to ensure that
activities would not interfere with subsistence hunting; and (3) a
statement that the applicant would continue to meet with the affected
communities up to and during the activities to resolve conflicts and
notify the native communities of any changes in plans or operation.
Reporting
Consistent with the MMPA, NMFS proposes to require the holder of an
incidental harassment authorization to submit a report to the AA within
90 days of completion of any activities or 120 days prior to expiration
of the incidental harassment authorization, whichever is earlier. This
report would include information on the dates and types of activities,
dates and locations of any monitoring activities, and results of the
monitoring activities (e.g., estimate of actual number of animals taken
by species by take-type and a description of any observed changes in
behavior attributable to the exploratory activities).
Monitoring reports would be reviewed by the AA and if determined to
be incomplete or inaccurate, would 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 AA, the
holder would have an opportunity to request an independent peer review
of the report. A failure to submit a complete report may result in a
delay in processing subsequent authorization requests.
Other Regulatory Amendments
In this rule, NMFS is also proposing to amend existing regulations
to streamline and clarify the process for issuing regulations and/or
LOAs. In addition, NMFS is proposing to require any Federal agencies
that apply for authorization under this part to provide to the AA, as
part of the application process, any documentation such agency has
prepared under NEPA. Any delay in submission of appropriate NEPA
documentation could cause a delay in small take authorization under
these regulations. Private entities either funded or permitted by
Federal agencies for the applied activity would need to submit NEPA
documentation prepared by the funding agency with their small take
application. Private organizations not funded by Federal agencies would
need to provide sufficient information in their application for NMFS to
perform an appropriate NEPA analysis. Applicants would be expected to
give consideration to, and fully discuss, alternatives to their
activity that would involve a lesser impact on marine mammals or their
habitat, including seasonal or diel alternatives. Agencies could
formally provide a NEPA document as part of their application at the
following junctures: (1) At any time subsequent to publication and
release of a final environmental impact statement or analysis, provided
the document reflected the situation as described in the small take
application and had undergone public review and comment; or (2) upon
notification in the Federal Register that the document is available for
public review.
Agencies requesting NMFS to be a ``cooperating agency'' as defined
in Council on Environmental Quality regulations (40 CFR 1501.6) would
have to notify the AA in writing a minimum of 18 months prior to
expected initiation of the proposed activity in order for NMFS to
assess program commitments and research requirements (if any), for
cooperating in the joint completion of the NEPA document. Although NMFS
would make every attempt to cooperate with other agencies, it cannot
guarantee its ability to cooperate with agencies not meeting this
criterion.
National Environmental Policy Act
The general regulations in subpart A would implement section
101(a)(5)(D) of the MMPA, as added by the 1994 Amendments, by providing
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. Also included
are proposed amendments to the existing subpart A. The AA has
determined, based upon an EA prepared for this action under NEPA, that
implementation of these general regulations would 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) have a negligible impact on marine mammals and their
habitat, 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 environmental assessments 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
that this proposed rule, if adopted, 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 these
authorizations, the taking of marine mammals, even by harassment, is
prohibited.
This proposed rule does not contain policies with federalism
implications sufficient to warrant preparation of a federalism
assessment under E.O. 12612.
This proposed rule contains collection-of-information requirements
subject to the provisions of the Paperwork Reduction Act. Although this
collection has been approved previously by the Office of Management and
Budget (OMB) under OMB control number 0648-0151, because of new
collection requirements for activities taking place in Arctic waters,
this rule is being resubmitted to OMB for review and approval. The
average reporting burden for this collection is estimated to be
approximately 252 hours per activity (range 96-563 hours depending upon
complexity), including the time for [[Page 28383]] gathering and
maintaining the data needed, and completing and reviewing the
collection of information including annual reports.
List of Subjects in 50 CFR Part 228
Marine mammals, Reporting and recordkeeping requirements.
Dated: May 23, 1995.
Richard H. Schaefer,
Acting Assistant Administrator for Fisheries, National Marine Fisheries
Service.
For reasons set out in the preamble, 50 CFR part 228 is proposed to
be amended as follows:
PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS
INCIDENTAL TO SPECIFIED ACTIVITIES
1. The authority citation for part 228 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq.
2. Subpart A is revised to read as follows:
Subpart A--General
Sec.
228.1 Purpose.
228.2 Scope.
228.3 Definitions.
228.4 Submission of requests.
228.5 Specific regulations.
228.6 Letter of authorization.
228.7 Incidental harassment authorization.
228.8 Requirements for monitoring and reporting under incidental
harassment authorizations.
Subpart A--General
Sec. 228.1 Purpose.
The regulations in this part 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. 228.2 Scope.
The taking of small numbers of marine mammals under section
101(a)(5) 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. 228.5, or requirements
and conditions contained within an incidental harassment authorization
issued under Sec. 228.7, 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 to this part.
Sec. 228.3 Definitions.
In addition to definitions contained in the Act, and unless the
context otherwise requires, in this part 228:
Act means the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1361 et seq.
Assistant Administrator means the Assistant Administrator for
Fisheries, NOAA, National Marine Fisheries Service, 1315 East-West
Highway, Silver Spring, MD 20910-3226.
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.
Harassment means any act of pursuit, torment, or annoyance that:
(1) Has the potential to injure a marine mammal or marine mammal
stock in the wild; or
(2) Has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering.
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
which are infrequent, unavoidable or accidental. (A complete definition
of take is contained in Sec. 216.3 of this chapter).
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. 228.4 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 specific 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 and those marine mammals that may be taken by
the activity by age, sex, and reproductive condition;
(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; [[Page 28384]]
(5) The type of incidental taking authorization that is being
requested (i.e., takes by harassment only; takes by harassment, injury
and/or death), the method of incidental taking (e.g., disturbance by
anthropogenic noise such as construction, seismic activities, or ship
traffic; serious injury or death resulting from explosives or
collisions between marine mammals and ships), and the number of times
such taking is likely to occur;
(6) The anticipated impact of the activity upon the species or
stock of marine mammal;
(7) The anticipated impact of the activity on the availability of
the species or stocks of marine mammals for subsistence uses;
(8) The anticipated impact of the activity upon the habitat and
food sources of the marine mammal populations, and the likelihood of
restoration of the affected habitat or food sources;
(9) The anticipated impact of the loss or modification of the
habitat or food sources on the marine mammal populations involved;
(10) 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.
(11) Where the proposed activity would take place in or near a
traditional subsistence hunting area and/or may affect the availability
of a species or stock of marine mammal for subsistence uses, the
applicant must submit a plan of cooperation that identifies what
measures have been taken and 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 met with the
affected subsistence communities to discuss proposed activities and to
resolve potential conflicts regarding any aspects of the operation;
(ii) A description of what measures the applicant has taken and
will take to ensure that proposed activities will not interfere with
subsistence whaling or sealing; and
(iii) 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.
(12) 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 Assistant
Administrator.
(13) 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, complete,
and in full compliance with the Act and other existing laws and
regulations (in particular, the National Environmental Policy Act and
the Endangered Species Act), will egin 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 promulgation or
repromulgation of regulations governing the incidental taking.
(2) Through notice in the Federal Register, newspapers of general
circulation, and appropriate electronic media in the coastal areas that
may be affected by such activity, NMFS will invite information,
suggestions, and comments for a period not to exceed 30 days from the
date of publication in the Federal Register. All information and
suggestions will be considered by the National Marine Fisheries Service
in developing, if appropriate, the most effective regulations governing
the issuance of letters of authorization or conditions governing the
issuance of an incidental harassment authorization.
(3) Applications that are determined to be incomplete, or
inappropriate for the type of taking requested, will be returned to the
applicant with an explanation of why the application is being returned.
(c) The Assistant Administrator shall evaluate each request to
determine, based upon the best available scientific evidence, whether
the taking by the specified activity within the specified geographic
region will have a negligible impact on the species or stock and, where
appropriate, will not have an unmitigable adverse impact on the
availability of such species or stock for subsistence uses. If the
Assistant Administrator finds that the mitigating measures would render
the impact of the specified activity negligible when it would not
otherwise satisfy that requirement, the Assistant Administrator may
make a finding of negligible impact subject to such mitigating measures
being successfully implemented. Any preliminary findings of
``negligible impact'' and ``no unmitigable adverse impact'' shall be
proposed for public comment along with either the proposed incidental
harassment authorization or the proposed regulations for the specific
activity.
(d) If, subsequent to the public review period, the Assistant
Administrator finds that the taking by the specified activity would
have more than a negligible impact on the species or stock of marine
mammal or would have an unmitigable adverse impact on the availability
of such species or stock for subsistence uses, the Assistant
Administrator shall publish in the Federal Register the negative
finding along with the basis for denying the request.
Sec. 228.5 Specific regulations.
(a) For all petitions for regulations under this paragraph,
applicants must provide the information requested in Sec. 228.4(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
combination thereof, specific regulations shall be established for each
allowed activity which 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, [[Page 28385]] through
monitoring, reporting, or research, the regulations may be modified, in
whole or in part, after notice and opportunity for public review.
Sec. 228.6 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. 228.5. Requests for letters of authorization
shall be submitted to the Assistant Administrator. The information to
be submitted in a request will be specified in the regulations
authorizing the incidental take or may be obtained by writing to the
Assistant Administrator.
(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. 228.6(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 Act.
Sec. 228.7 Incidental harassment authorization.
(a) Except for activities that have the potential to result in
serious injuries (that may be authorized under Sec. 228.5), following a
30-day public review period, incidental harassment authorizations may
be issued 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 1 year.
(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
Sec. 228.7(f) 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 Act.
Sec. 228.8 Requirements for monitoring and reporting under incidental
harassment authorizations.
(a) Holders of an incidental harassment authorization 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 must notify the
appropriate Regional Director, National Marine Fisheries Service, of
any activities that may involve a take by incidental harassment at
least 14 calendar days prior to commencement of the activity.
(b) Holders of incidental harassment authorizations 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 required, 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 final approval of the applicant's
submission of a request for an incidental harassment authorization
under this subpart. In order to complete the peer-review process within
the time frames mandated by the Act 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 [[Page 28386]] 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 on board vessels, platforms, aircraft, etc., to
monitor the impact of activities on marine mammals.
(f) Reporting. (1) The holder of an incidental harassment
authorization must submit a report to the Assistant Administrator
within either 90 days of completion of any activities or 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.
[FR Doc. 95-13265 Filed 5-30-95; 8:45 am]
BILLING CODE 3510-22-F
