subpart f—pribilof islands, taking for subsistence purposes

53

National Marine Fisheries Service/NOAA, Commerce § 216.72

that the request was sent to the con-tributor(s).

(5) The USFWS Representative of the NMMTB Collaborating Agencies will be chair of review committees for re-quests involving species managed by the DOI. The MMHSRP Program Man-ager will be chair of all other review committees.

(6) Each committee chair will provide recommendations on the request and an evaluation of the study plan to the Director, Office of Protected Re-sources, NMFS.

(7) The Director, Office of Protected Resources, NMFS, will make the final decision on release of the samples based on the advice provided by the re-view committee, comments received from any contributor(s) of the sample within the time provided in paragraph (a)(4) of this section, and determina-tion that the proposed use of the banked tissue specimen is consistent with the goals of the MMHSRP and the NMMTB. The Director will send a writ-ten decision to the applicant and send copies to all review committee mem-bers. If the samples are released, the response will indicate whether the samples have been homogenized and, if not, the homogenization schedule.

(8) The applicant will bear all ship-ping and homogenization costs related to use of any specimens from the NMMTB.

(9) The applicant will dispose of the tissue specimen sample consistent with the provisions of the applicant’s sci-entific research permit after the re-search is completed, unless the re-quester submits another request and receives approval pursuant to this sec-tion. The request must be submitted within three months after the original project has been completed.

(b) [Reserved]

[69 FR 41979, July 13, 2004]

§§ 216.48–216.49 [Reserved]

Subpart E—Designated Ports § 216.50 Importation at designated

ports. (a) Any marine mammal or marine

mammal product which is subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic

and Atmospheric Administration, De-partment of Commerce and is intended for importation into the United States shall be subject to the provisions of 50 CFR part 14.

(b) For the information of importers, designated ports of entry for the United States are:

New York, N.Y. Miami, Fla. Chicago, Ill. San Francisco, Calif. Los Angeles, Calif. New Orleans, La. Seattle, Wash. Honolulu, Hi.

(c) Additionally, marine mammals or marine mammal products which are entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the Virgin Islands and which are not to be forwarded or transhipped within the United States may be imported through the following ports:

Alaska—Juneau, Anchorage, Fairbanks Hawaii—Honolulu Puerto Rico—San Juan Guam—Honolulu, Hi. American Samoa—Honolulu, Hi. Virgin Islands—San Juan, P.R.

(d) Importers are advised to see 50 CFR part 14 for importation require-ments and information.

[39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994]

Subpart F—Pribilof Islands, Taking for Subsistence Purposes

§ 216.71 Allowable take of fur seals. Pribilovians may take fur seals on

the Pribilof Islands if such taking is (a) For subsistence uses, and (b) Not accomplished in a wasteful

manner.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.72 Restrictions on subsistence fur seal harvests.

(a) The harvests of seals on St. Paul and St. George Islands shall be treated independently for the purposes of this section. Any suspension, termination, or extension of the harvest is applica-ble only to the island for which it is issued.

VerDate Sep<11>2014 12:21 Dec 03, 2015 Jkt 235239 PO 00000 Frm 00063 Fmt 8010 Sfmt 8010 Q:\50\235239.XXX 31lpow

ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

hupperts

Cross-Out

54

50 CFR Ch. II (10–1–15 Edition) § 216.72

(b) By April 1 of every third year, be-ginning April 1994, the Assistant Ad-ministrator will publish in the FED-ERAL REGISTER a summary of the pre-ceding 3 years of harvesting and a dis-cussion of the number of seals expected to be taken annually over the next 3 years to satisfy the subsistence re-quirements of each island. This discus-sion will include an assessment of fac-tors and conditions on St. Paul and St. George Islands that influence the need by Pribilof Aleuts to take seals for sub-sistence uses and an assessment of any changes to those conditions indicating that the number of seals that may be taken for subsistence each year should be made higher or lower. Following a 30-day public comment period, a final notification of the expected annual harvest levels for the next 3 years will be published.

(c)[Reserved] (d) St. George Island. The subsistence

fur seal harvest restrictions described in paragraphs (d)(1) through (d)(5) of this section apply exclusively to the harvest of sub-adult fur seals; restric-tions that apply exclusively to the har-vest of young of the year fur seals can be found in paragraphs (d)(6) through (d)(11) of this section.

(1) Pribilovians may only harvest sub-adult male fur seals 124.5 centi-meters or less in length from June 23 through August 8 annually on St. George Island up to the lower end of the harvest range established in para-graph (b) of this section. When the lower end of the range has been reached paragraphs (f)(1)(iii) and (f)(3) of this section apply.

(2) Pribilovians may harvest sub- adult male fur seals at the hauling grounds shown in Figure 1 to part 216. No hauling ground may be harvested more than twice per week.

(3) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.

(4) The scheduling of the sub-adult male harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested seals. The Pribilovians must give adequate advance notice of their harvest sched-ules to the NMFS representatives to allow for necessary monitoring activi-ties. No fur seal may be taken except

by experienced sealers using the tradi-tional harvesting methods, including stunning followed immediately by exsanguination. The harvesting meth-od shall include organized drives of sub-adult male fur seals to killing fields, unless the NMFS representa-tives determine, in consultation with the Pribilovians conducting the har-vest, that alternative methods will not result in increased disturbance to the rookery or the increased accidental take of female seals.

(5) Any taking of adult fur seals or young of the year, or the intentional taking of sub-adult female fur seals is prohibited.

(6) Pribilovians may only harvest male young of the year from Sep-tember 16 through November 30 annu-ally on St. George Island. Pribilovians may harvest up to 150 male fur seal young of the year annually up to the lower end of the harvest range estab-lished for St. George in the notice pub-lished pursuant to paragraph (b) of this section. When the lower end of the har-vest range has been reached paragraphs (f)(1)(iii) and (f)(3) of this section apply.

(7) No more than 50 male young of the year may be harvested from each of the following regions where fur seals congregate: East region includes the breeding areas known as East Reef and East Cliffs rookeries and the associated non-breeding hauling grounds; South region includes the breeding areas known as Zapadni and South rookeries and the associated non-breeding haul-ing grounds; and North region includes the breeding areas known as North and Staraya Artil rookeries and associated non-breeding hauling grounds, as shown in Figure 1 to part 216. No area may be harvested more than twice per week and must be in accordance with paragraph (d)(10) of this section.

(8) The scheduling of the young of the year harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested and un-harvested fur seals and minimize the take of female fur seals. The Pribilovians must give adequate ad-vance notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring activities. No fur seal may be taken except by sealers


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

55


using the harvesting methods imple-mented to reduce disturbance, injury, and accidental mortality of female fur seals. Pribilovians may use, but are not limited to, organized drives of young of the year fur seals from congregating areas to inland killing fields. Methods of harvest must include identification of male young of the year, followed by stunning and immediate exsanguination, unless the NMFS rep-resentatives, in consultation with the Pribilovians conducting the harvest, determine that alternative methods will not result in increased stress to harvested and un-harvested fur seals, increased disturbance or injury to rest-ing fur seals, or the accidental mor-tality of female seals.

(9) Any harvest of sub adult or adult fur seals or intentional harvest of young of the year female fur seals is prohibited.

(10) No young of the year fur seals may be taken from any designated breeding area or its associated hauling ground(s) where the most recent NMFS analysis projects that pup production has greater than a 5 percent prob-ability of falling below a level capable of sustaining a harvest in 10 years.

(11) No more than 120 days after the final subsistence harvest each calendar year, NMFS representatives and St. George Island community members must review the implementation of the harvest and consider best harvest prac-tices and determine if implementation can be improved to better meet the subsistence needs of the St. George Is-land community or reduce negative ef-fects on fur seals.

(e) St. Paul Island. Seals may only be harvested from the following haulout areas: Zapadni, English Bay, Northeast Point, Polovina, Lukanin, Kitovi, and Reef. No haulout area may be har-vested more than once per week.

(1) The scheduling of the harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested fur seals. The Pribilovians must give adequate ad-vance notice of their harvest schedules to the NMFS representatives to allow for necessary monitoring activities.

(2) No fur seal may be taken on the Pribilof Islands before June 23 of each year.

(3) No fur seal may be taken except by experienced sealers using the tradi-tional harvesting methods, including stunning followed immediately by exsanguination. The harvesting meth-od shall include organized drives of subadult males to killing fields unless it is determined by the NMFS rep-resentatives, in consultation with the Pribilovians conducting the harvest, that alternative methods will not re-sult in increased disturbance to the rookery or the increased accidental take of female seals.

(4) Any taking of adult fur seals or pups, or the intentional taking of subadult female fur seals is prohibited.

(5) Only subadult male fur seals 124.5 centimeters or less in length may be taken.

(6) Seals with tags and/or entangling debris may only be taken if so directed by NMFS scientists.

(f) Harvest suspension provisions. (1) The Assistant Administrator is re-quired to suspend the take provided for in §§ 216.71 and 216.72 when:

(i) (S)He determines, after reasonable notice by NMFS representatives to the Pribilovians on the island, that the subsistence needs of the Pribilovians on the island have been satisfied; or

(ii) (S)He determines that the harvest is otherwise being conducted in a wasteful manner; or

(iii) The lower end of the range of the estimated subsistence level provided in the notice issued under paragraph (b) of this section is reached; or

(iv) With regard to St. George Island, two female fur seals have been killed on St. George Island.

(2) A suspension based on a deter-mination under paragraph (f)(1)(ii) of this section may be lifted by the As-sistant Administrator if (s)he finds that the conditions that led to the de-termination that the harvest was being conducted in a wasteful manner have been remedied.

(3) A suspension issued in accordance with paragraph (f)(1)(iii) of this section may not exceed 48 hours in duration and shall be followed immediately by a review of the harvest data to determine if a finding under paragraph (f)(1)(i) of this section is warranted. If the har-vest is not suspended under paragraph (f)(1)(i) of this section, the Assistant


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

56

50 CFR Ch. II (10–1–15 Edition) § 216.73

Administrator must provide a revised estimate of the number of seals re-quired to satisfy the Pribilovians’ sub-sistence needs.

(4) A suspension based on a deter-mination under paragraph (f)(1)(iv) of this section may be lifted by the As-sistant Administrator if (s)he finds that the conditions that led to the kill-ing of two female fur seals have been remedied and additional or improved methods to detect female fur seals in the harvest are being implemented.

(g) Harvest termination provisions. (1) The Assistant Administrator shall ter-minate the annual take provided for in § 216.71 on August 8 for sub-adult males on St. Paul and St. George Islands and on November 30 for male young of the year on St. George Island.

(2) The Assistant Administrator shall terminate the take provided for in § 216.71 when (s)he determines under paragraph (f)(1)(i) or (f)(1)(iii) of this section that the subsistence needs of the Pribilovians on the island have been satisfied or the upper end of the harvest range has been reached, which-ever occurs first.

(3) The Assistant Administrator shall terminate the take on St. George Is-land provided for in § 216.71 if a total of three female fur seals are killed during the season on St. George Island.

[51 FR 24840, July 9, 1986, as amended at 57 FR 33902, July 31, 1992; 59 FR 35474, July 12, 1994. Redesignated at 61 FR 11750, Mar. 22, 1996, as amended at 79 FR 65337, Nov. 4, 2014]

§ 216.73 Disposition of fur seal parts. Except for transfers to other Alaskan

Natives for barter or sharing for per-sonal or family consumption, no part of a fur seal taken for subsistence uses may be sold or otherwise transferred to any person unless it is a nonedible by-product which:

(a) Has been transformed into an ar-ticle of handicraft, or

(b) Is being sent by an Alaskan Na-tive directly, or through a registered agent, to a tannery registered under 50 CFR 216.23(c) for the purpose of proc-essing, and will be returned directly to the Alaskan Native for conversion into an article of handicraft, or

(c) Is being sold or transferred to an Alaskan Native, or to an agent reg-istered under 50 CFR 216.23(c) for resale

or transfer to an Alaskan Native, who will convert the seal part into a handi-craft.

[51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.74 Cooperation between fur seal harvesters, tribal and Federal Offi-cials.

(a) St. George Island. Federal sci-entists and Pribilovians cooperatively manage the subsistence harvest of northern fur seals under section 119 of the Marine Mammal Protection Act (16 U.S.C. 1388). The Federally recognized tribes on the Pribilof Islands have signed agreements describing a shared interest in the conservation and man-agement of fur seals and the designa-tion of co-management councils that meet and address the purposes of the co-management agreements for rep-resentatives from NMFS, St. George and St. Paul tribal governments. NMFS representatives are responsible for compiling information related to sources of human-caused mortality and serious injury of marine mammals. The Pribilovians are responsible for report-ing their subsistence needs and actual level of subsistence take. This informa-tion is used to update stock assessment reports and make determinations under § 216.72. Pribilovians who take fur seals for subsistence uses collabo-rate with NMFS representatives and the respective tribal representatives to consider best harvest practices under co-management and to facilitate sci-entific research.

(b) St. Paul Island. The Pribilovians who engage in the harvest of seals are required to cooperate with scientists engaged in fur seal research on the Pribilof Islands who may need assist-ance in recording tag or other data and collecting tissue or other fur seal sam-ples for research purposes. In addition, Pribilovians who take fur seals for sub-sistence uses must, consistent with 5 CFR 1320.7(k)(3), cooperate with the NMFS representatives on the Pribilof Islands who are responsible for com-piling the following information on a daily basis:

(1) The number of seals taken each day in the subsistence harvest,

(2) The extent of the utilization of fur seals taken, and


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

57


(3) Other information determined by the Assistant Administrator to be nec-essary for determining the subsistence needs of the Pribilovians or for making determinations under § 215.32(e) of this chapter.

[79 FR 65338, Nov. 4, 2014]

Subpart G—Pribilof Islands Administration

§ 216.81 Visits to fur seal rookeries.

From June 1 to October 15 of each year, no person, except those author-ized by a representative of the National Marine Fisheries Service, or accom-panied by an authorized employee of the National Marine Fisheries Service, shall approach any fur seal rookery or hauling grounds nor pass beyond any posted sign forbidding passage.

[41 FR 49488, Nov. 9, 1976. Redesignated at 61 FR 11750, Mar. 22, 1996]

§ 216.82 Dogs prohibited.

In order to prevent molestation of fur seal herds, the landing of any dogs at Pribilof Islands is prohibited.


§ 216.83 Importation of birds or mam-mals.

No mammals or birds, except house-hold cats, canaries and parakeets, shall be imported to the Pribilof Islands without the permission of an author-ized representative of the National Ma-rine Fisheries Service.


§ 216.84 [Reserved]

§ 216.85 Walrus and Otter Islands.

By Executive Order 1044, dated Feb-ruary 27, 1909, Walrus and Otter Islands were set aside as bird reservations. All persons are prohibited to land on these islands except those authorized by the appropriate representative of the Na-tional Marine Fisheries Service.


§ 216.86 Local regulations.

Local regulations will be published from time to time and will be brought to the attention of local residents and persons assigned to duty on the Islands by posting in public places and brought to the attention of tourists by personal notice.


§ 216.87 Wildlife research.

(a) Wildlife research, other than re-search on North Pacific fur seals, in-cluding specimen collection, may be permitted on the Pribilof Islands sub-ject to the following conditions:

(1) Any person or agency, seeking to conduct such research shall first obtain any Federal or State of Alaska permit required for the type of research in-volved.

(2) Any person seeking to conduct such research shall obtain prior ap-proval of the Director, Pribilof Islands Program, National Marine Fisheries Service, National Oceanic and Atmos-pheric Administration, 1700 Westlake Avenue North, Seattle, WA 98109, by filing with the Director an application which shall include:

(i) Copies of the required Federal and State of Alaska permits; and

(ii) A resume of the intended research program.

(3) All approved research shall be subject to all regulations and adminis-trative procedures in effect on the Pribilof Islands, and such research shall not commence until approval from the Director is received.

(4) Any approved research program shall be subject to such terms and con-ditions as the Director, Pribilof Islands Program deems appropriate.

(5) Permission to utilize the Pribilof Islands to conduct an approved re-search program may be revoked by the Director, Pribilof Islands Program at any time for noncompliance with any terms and conditions, or for violations of any regulation or administrative procedure in effect on the Pribilof Is-lands.

[43 FR 5521, Feb. 9, 1978. Redesignated at 61 FR 11750, Mar. 22, 1996]


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

58

50 CFR Ch. II (10–1–15 Edition) § 216.90

Subpart H—Dolphin Safe Tuna Labeling

AUTHORITY: 16 U.S.C. 1385.

§ 216.90 Purposes.

This subpart governs the require-ments for using the official mark de-scribed in § 216.95 or an alternative mark that refers to dolphins, porpoises, or marine mammals, to label tuna or tuna products offered for sale in or ex-ported from the United States using the term dolphin-safe or suggesting the tuna were harvested in a manner not injurious to dolphins.

[69 FR 55307, Sept. 13, 2004]

§ 216.91 Dolphin-safe labeling stand-ards.

(a) It is a violation of Section 5 of the Federal Trade Commission Act (15 U.S.C. 45) for any producer, importer, exporter, distributor, or seller of any tuna products that are exported from or offered for sale in the United States to include on the label of those prod-ucts the term ‘‘dolphin-safe’’ or any other term or symbol that claims or suggests that the tuna contained in the products were harvested using a meth-od of fishing that is not harmful to dol-phins if the products contain tuna har-vested:

(1) ETP large purse seine vessel. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity unless:

(i) the documentation requirements for dolphin-safe tuna under § 216.92 and 216.93 are met;

(ii) No dolphins were killed or seri-ously injured during the sets in which the tuna were caught; and

(iii) None of the tuna were caught on a trip using a purse seine net inten-tionally deployed on or to encircle dol-phins, provided that this paragraph (a)(1)(iii) will not apply if the Assistant Administrator publishes a notification in the FEDERAL REGISTER announcing a finding under 16 U.S.C. 1385(g)(2) that the intentional deployment of purse seine nets on or encirclement of dol-phins is not having a significant ad-verse impact on any depleted stock.

(2) Non-ETP purse seine vessel. Outside the ETP by a vessel using a purse seine net:

(i) In a fishery in which the Assistant Administrator has determined that a regular and significant association oc-curs between dolphins and tuna (simi-lar to the association between dolphins and tuna in the ETP), unless such prod-ucts are accompanied as described in § 216.24(f)(3) by a written statement, ex-ecuted by the Captain of the vessel and an observer participating in a national or international program acceptable to the Assistant Administrator, certifying that no purse seine net was inten-tionally deployed on or used to encircle dolphins during the particular trip on which the tuna were caught and no dol-phins were killed or seriously injured in the sets in which the tuna were caught; or

(ii) In any other fishery on a fishing trip that began before July 13, 2013 un-less the products are accompanied as described in § 216.93(d), (e), or (f), as ap-propriate, by a written statement exe-cuted by the Captain of the vessel cer-tifying that no purse seine net was in-tentionally deployed on or used to en-circle dolphins during the particular trip on which the tuna was harvested;

(iii) In any other fishery on a fishing trip that began on or after July 13, 2013 unless the products are accompanied as described in § 216.93(d), (e), or (f), as ap-propriate, by:

(A) A written statement executed by the Captain of the vessel certifying that no purse seine net was inten-tionally deployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously in-jured in the sets in which the tuna were caught; and

(B) Where the Assistant Adminis-trator has determined that observers participating in a national or inter-national observer program are quali-fied and authorized to certify that no purse seine net was intentionally de-ployed on or used to encircle dolphins during the fishing trip in which the tuna were caught, and that no dolphins were killed or seriously injured in the sets in which the tuna were caught, and where such an observer is on board


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

59


the vessel, a written statement exe-cuted by the observer, or by an author-ized representative of a nation partici-pating in the observer program based on information from the observer, cer-tifying that no purse seine net was in-tentionally deployed on or used to en-circle dolphins during the fishing trip in which the tuna were caught and that no dolphins were killed or seriously in-jured in the sets in which the tuna were caught. Any determination by the Assistant Administrator shall be an-nounced in a notice published in the FEDERAL REGISTER. Determinations under this subparagraph will also be publicized on the Web site of the NMFS Southwest Region (http:// swr.nmfs.noaa.gov/).

(3) Driftnet. By a vessel engaged in large-scale driftnet fishing; or

(4) Other fisheries. By a vessel on a fishing trip that began on or after July 13, 2013 in a fishery other than one de-scribed in paragraphs (a)(1) through (3) of this section unless such product is accompanied as described in section 216.93(d), (e), or (f), as appropriate, by:

(i) A written statement executed by the Captain of the vessel certifying that no dolphins were killed or seri-ously injured in the sets or other gear deployments in which the tuna were caught;

(ii) Where the Assistant Adminis-trator has determined that observers participating in a national or inter-national observer program are quali-fied and authorized to certify that no dolphins were killed or seriously in-jured in the sets or other gear deploy-ments in which the tuna were caught, and where such an observer is on board the vessel, a written statement exe-cuted by the observer, or by an author-ized representative of a nation partici-pating in the observer program based on information from the observer, cer-tifying that no dolphins were killed or seriously injured in the sets or other gear deployments in which the tuna were caught. Any determination by the Assistant Administrator shall be an-nounced in a notice published in the FEDERAL REGISTER. Determinations under this subparagraph will also be publicized on the Web site of the NMFS Southwest Region (http:// swr.nmfs.noaa.gov/); and

(iii) In any other fishery that is iden-tified by the Assistant Administrator as having a regular and significant mortality or serious injury of dolphins, a written statement executed by an ob-server participating in a national or international program acceptable to the Assistant Administrator, that no dolphins were killed or seriously in-jured in the sets or other gear deploy-ments in which the tuna were caught, provided that the Assistant Adminis-trator determines that such an ob-server statement is necessary.

(5) All Fisheries. On a fishing trip that began on or after July 13, 2013 during which any dolphin was killed or seri-ously injured, unless the tuna labeled dolphin-safe was caught in a set or other gear deployment was stored sepa-rately from tuna caught in non-dol-phin-safe sets or other gear deploy-ments by the use of netting, other ma-terial, or separate storage areas from the time of capture through unloading. If a purse seine vessel has more than one well used to store tuna, all tuna in-side a well shall be considered non-dol-phin-safe, if at any time non-dolphin- safe tuna is loaded into the well, re-gardless of the use of netting or other material inside the well.

(b) It is a violation of section 5 of the Federal Trade Commission Act (15 U.S.C. 45) to willingly and knowingly use a label referred to in this section in a campaign or effort to mislead or de-ceive consumers about the level of pro-tection afforded dolphins under the IDCP.

(c) A tuna product that is labeled with the official mark, described in § 216.95, may not be labeled with any other label or mark that refers to dol-phins, porpoises, or marine mammals.

[69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009; 78 FR 41002, July 9, 2013]

§ 216.92 Dolphin-safe requirements for tuna harvested in the ETP by large purse seine vessels.

(a) U.S. vessels. Tuna products that contain tuna harvested by U.S. flag purse seine vessels of greater than 400 st (362.8 mt) carrying capacity in the ETP may be labeled dolphin-safe only if the following requirements are met:


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

60

50 CFR Ch. II (10–1–15 Edition) § 216.93

(1) Tuna Tracking Forms containing a complete record of all the fishing ac-tivities on the trip, certified by the vessel Captain and the observer, are submitted to the Administrator, Southwest Region, at the end of the fishing trip during which the tuna was harvested;

(2) The tuna is delivered for proc-essing to a U.S. tuna processor in a plant located in one of the 50 states, Puerto Rico, or American Samoa that is in compliance with the tuna track-ing and verification requirements of § 216.93; and

(3) The tuna or tuna products meet the dolphin-safe labeling standards under § 216.91.

(b) Imported tuna. (1) Yellowfin tuna or tuna products harvested in the ETP by vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if the yel-lowfin tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applica-ble U.S. law, or by a vessel belonging to a nation that has obtained an af-firmative finding under § 216.24(f)(8).

(2) Tuna or tuna products, other than yellowfin tuna, harvested in the ETP by purse seine vessels of greater than 400 st (362.8 mt) carrying capacity and presented for import into the United States may be labeled dolphin-safe only if:

(i) The tuna was harvested by a U.S. vessel fishing in compliance with the requirements of the IDCP and applica-ble U.S. law, or by a vessel belonging to a nation that is a Party to the Agreement on the IDCP or has applied to become a Party and is adhering to all the requirements of the Agreement on the IDCP Tuna Tracking and Verification Plan;

(ii) The tuna or tuna products are ac-companied as described in § 216.24(f)(3) by a properly completed FCO; and

(iii) The tuna or tuna products are accompanied as described in § 216.24(f)(3) by valid documentation signed by a representative of the appro-priate IDCP member nation, con-taining the harvesting vessel names and tuna tracking form numbers rep-resented in the shipment, and certi-fying that:

(A) There was an IDCP approved ob-server on board the vessel(s) during the entire trip(s); and

(B) The tuna contained in the ship-ment were caught according to the dol-phin-safe labeling standards of § 216.91.

[69 FR 55307, Sept. 13, 2004, as amended at 74 FR 1617, Jan. 13, 2009]

§ 216.93 Tracking and verification pro-gram.

The Administrator, Southwest Re-gion, has established a national track-ing and verification program to accu-rately document the dolphin-safe con-dition of tuna, under the standards set forth in §§ 216.91 and 216.92. The track-ing program includes procedures and reports for use when importing tuna into the United States and during U.S. fishing, processing, and marketing in the United States and abroad. Verification of tracking system oper-ations is attained through the estab-lishment of audit and document review requirements. The tracking program is consistent with the international tuna tracking and verification program adopted by the Parties to the Agree-ment on the IDCP.

(a) Tuna tracking forms. Whenever a U.S. flag tuna purse seine vessel of greater than 400 st (362.8 mt) carrying capacity fishes in the ETP, IDCP ap-proved Tuna Tracking Forms (TTFs), bearing a unique number assigned to that trip, are used by the observer to record every set made during that trip. One TTF is used to record dolphin-safe sets and a second TTF is used to record non-dolphin-safe sets. The information entered on the TTFs following each set includes the date, well number, weights by species composition, estimated tons loaded, and additional notes, if any. The observer and the vessel engineer initial the entry as soon as possible fol-lowing each set, and the vessel captain and observer review and sign both TTFs at the end of the fishing trip cer-tifying that the information on the forms is accurate. TTFs are confiden-tial official documents of the IDCP, consistent with Article XVIII of the Agreement on the IDCP, and the Agreement on the IDCP Rules of Con-fidentiality.

(b) Dolphin-Safe Certification. Upon re-quest, the Office of the Administrator,


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

61


Southwest Region, will provide written certification that tuna harvested by U.S. purse seine vessels greater than 400 st (362.8 mt) carrying capacity is dolphin-safe, but only if NMFS’ review of the TTFs for the subject trip shows that the tuna for which the certifi-cation is requested is dolphin-safe under the requirements of the Agree-ment on the IDCP and U.S. law.

(c) Tracking fishing operations. (1) ETP large purse seine vessel. In the ETP by a purse seine vessel of greater than 400 st (362.8 mt) carrying capacity:

(i) During fishing trips, any part of which included fishing in the ETP, by purse seine vessels greater than 400 st (362.8 mt) carrying capacity, tuna caught in sets designated as dolphin- safe by the vessel observer must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Vessel per-sonnel will decide into which wells tuna will be loaded. The observer will initially designate whether each set is dolphin-safe or not, based on his/her observation of the set. The observer will initially identify a vessel fish well as dolphin-safe if the first tuna loaded into the well during a trip was cap-tured in a set in which no dolphin died or was seriously injured. The observer will initially identify a vessel fish well as non-dolphin-safe if the first tuna loaded into the well during a trip was captured in a set in which a dolphin died or was seriously injured. Any tuna loaded into a well previously des-ignated non-dolphin-safe is considered non-dolphin-safe tuna. The observer will change the designation of a dol-phin-safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dol-phin died or was seriously injured.

(ii) The captain, managing owner, or vessel agent of a U.S. purse seine vessel greater than 400 st (362.8 mt) returning to port from a trip, any part of which included fishing in the ETP, must pro-vide at least 48 hours’ notice of the ves-sel’s intended place of landing, arrival time, and schedule of unloading to the Administrator, Southwest Region.

(iii) If the trip terminates when the vessel enters port to unload part or all of its catch, new TTFs will be assigned to the new trip, and any information

concerning tuna retained on the vessel will be recorded as the first entry on the TTFs for the new trip. If the trip is not terminated following a partial un-loading, the vessel will retain the original TTFs and submit a copy of those TTFs to the Administrator, Southwest Region, within 5 working days. In either case, the species and amount unloaded will be noted on the respective originals.

(iv) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica-tion of the dolphin-safe or non-dolphin- safe designation of the tuna as it left the fishing vessel.

(v) The handling of TTFs and the tracking and verification of tuna caught in the Convention Area by a U.S. purse seine vessel greater than 400 st (362.8 mt) carrying capacity shall be conducted consistent with the inter-national tuna tracking and verification program adopted by the Parties to the Agreement on the IDCP.

(2) Purse seine vessel other than ETP large purse seine vessel. This paragraph (c)(2) applies to tuna product labeled dolphin-safe that includes tuna har-vested on a fishing trip that began on or after July 13, 2013, in the ETP by a purse seine vessel of 400 st (362.8 mt) or less carrying capacity or by a purse seine vessel outside the ETP of any carrying capacity.

(i) Tuna caught in sets designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets from the time of capture through unloading. Tuna caught in sets where a dolphin died or was seriously injured must be stored in a well designated as non-dolphin-safe by the captain or, where applicable, by a qualified and au-thorized observer under § 216.91. Any tuna loaded into a well previously des-ignated non-dolphin-safe is considered non-dolphin-safe tuna. The captain or, where applicable, a qualified and au-thorized observer under § 216.91, will change the designation of a dolphin- safe well to non-dolphin-safe if any tuna are loaded into the well that were captured in a set in which a dolphin died or was seriously injured. If a purse seine vessel has only one well used to store tuna, dolphin-safe tuna must be


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

62

50 CFR Ch. II (10–1–15 Edition) § 216.93

kept physically separate from non-dol-phin-safe tuna by using netting or other material. If a purse seine vessel has more than one well used to store tuna, all tuna inside a well shall be considered non-dolphin-safe, if at any time non-dolphin-safe tuna is loaded into the well, regardless of the use of netting or other material inside the well.

(ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica-tion of the dolphin-safe or non-dolphin- safe designation of the tuna as it left the fishing vessel.

(3) Other vessels. This paragraph (c)(3) applies to tuna product labeled dol-phin-safe that includes tuna harvested by a vessel on a fishing trip that began on or after July 13, 2013 other than ones described in paragraphs (c)(1) or (2) of this section:

(i) Tuna caught in sets or other gear deployments designated as dolphin-safe must be stored separately from tuna caught in non-dolphin-safe sets or other gear deployments from the time of capture through unloading. Dolphin- safe tuna must be kept physically sepa-rate from non-dolphin-safe tuna by using netting, other material, or sepa-rate storage areas. The captain or, where applicable, a qualified and au-thorized observer under § 216.91, must designate the storage areas for dolphin- safe and non-dolphin-safe tuna.

(ii) Tuna offloaded to trucks, storage facilities, or carrier vessels must be loaded or stored in such a way as to maintain and safeguard the identifica-tion of the dolphin-safe or non-dolphin- safe designation of the tuna as it left the fishing vessel.

(d) Tracking cannery operations. (1) Whenever a U.S. tuna canning com-pany in the 50 states, Puerto Rico, or American Samoa receives a domestic or imported shipment of tuna for proc-essing, a NMFS representative may be present to monitor delivery and verify that dolphin-safe and non-dolphin-safe tuna are clearly identified and remain segregated. Such inspections may be scheduled or unscheduled, and canners must allow the NMFS representative access to all areas and records.

(2) Tuna processors must submit a re-port to the Administrator, Southwest Region, of all tuna received at their processing facilities in each calendar month whether or not the tuna is actu-ally canned or stored during that month. Monthly cannery receipt re-ports must be submitted electronically or by mail before the last day of the month following the month being re-ported. Monthly reports must contain the following information:

(i) Domestic receipts: whether the tuna is eligible to be labeled dolphin-safe under § 216.91, species, condition (round, loin, dressed, gilled and gutted, other), weight in short tons to the fourth dec-imal, ocean area of capture (ETP, west-ern Pacific, Indian, eastern and west-ern Atlantic, other), catcher vessel, gear type, trip dates, carrier name, un-loading dates, and location of unload-ing. Where the processor indicates the tuna is eligible to be labeled dolphin- safe under § 216.91, it must enclose the certifications required by that section.

(ii) Import receipts: In addition to the information required in paragraph (d)(2)(i) of this section, a copy of the FCO for each imported receipt must be provided.

(3) Tuna processors must report on a monthly basis the amounts of ETP- caught tuna that were immediately utilized upon receipt or removed from cold storage. This report may be sub-mitted in conjunction with the month-ly report required in paragraph (d)(2) of this section. This report must contain:

(i) The date of removal from cold storage or disposition;

(ii) Storage container or lot identi-fier number(s) and dolphin-safe or non- dolphin-safe designation of each con-tainer or lot; and

(iii) Details of the disposition of fish (for example, canning, sale, rejection, etc.).

(4) During canning activities, non- dolphin-safe tuna may not be mixed in any manner or at any time during processing with any dolphin-safe tuna or tuna products and may not share the same storage containers, cookers, con-veyers, tables, or other canning and la-beling machinery.

(e) Tracking processor operations other than cannery operations. U.S. tuna proc-essors other than cannery operations


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

63


engaged in processing tuna products, including frozen, dried, or smoked tuna products, must submit a report to the Administrator, Southwest Region that includes the information set out in § 216.93(d)(2) and (3) on a monthly basis for all tuna received at their processing facilities that will be included in any tuna product labeled dolphin-safe.

(f) Tracking imports. All tuna prod-ucts, except fresh tuna, that are im-ported into the United States must be accompanied as described in § 216.24(f)(3) by a properly certified FCO as required by § 216.24(f)(2). For tuna tracking purposes, copies of FCOs and associated certifications must be sub-mitted by the importer of record to the Administrator, Southwest Region, within 10 calendar days of the ship-ment’s entry into the commerce of the United States as required by § 216.24(f)(3)(ii).

(g) Verification requirements. (1) Record maintenance. Any exporter, transshipper, importer, processor, or wholesaler/distributor of any tuna or tuna products must maintain records related to that tuna for at least 2 years. These records include, but are not limited to: FCOs and required cer-tifications, any reports required in paragraphs (a), (b), (d) and (e) of this section, invoices, other import docu-ments, and trip reports.

(2) Record submission. Within 10 cal-endar days of receiving a shipment of tuna or tuna products, any exporter, transshipper, importer, processor, or wholesaler/distributor of tuna or tuna products must submit to the Adminis-trator, Southwest Region, all cor-responding FCOs and required certifi-cations for those tuna or tuna prod-ucts.

(3) Audits and spot checks. Upon re-quest of the Administrator, Southwest Region, any exporter, transshipper, im-porter, processor, or wholesaler/dis-tributor of tuna or tuna products must provide the Administrator, Southwest Region, timely access to all pertinent records and facilities to allow for au-dits and spot-checks on caught, landed, stored, and processed tuna.

(h) Confidentiality of proprietary infor-mation. Information submitted to the Assistant Administrator under this section will be treated as confidential in accordance with NOAA Administra-tive Order 216–100 ‘‘Protection of Con-fidential Fisheries Statistics.’’

[78 FR 41002, July 9, 2013]

§ 216.94 False statements or endorse-ments.

Any person who knowingly and will-fully makes a false statement or false endorsement required by § 216.92 is lia-ble for a civil penalty not to exceed $100,000, that may be assessed in an ac-tion brought in any appropriate Dis-trict Court of the United States on be-half of the Secretary.

[61 FR 27794, June 3, 1996. Redesignated at 69 FR 55307, Sept. 13, 2004]

§ 216.95 Official mark for ‘‘Dolphin- safe’’ tuna products.

(a) This is the ‘‘official mark’’ (see figure 1) designated by the United States Department of Commerce that may be used to label tuna products that meet the ‘‘dolphin-safe’’ standards set forth in the Dolphin Protection Consumer Information Act, 16 U.S.C. 1385, and implementing regulations at §§ 216.91 through 216.94:


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

64

50 CFR Ch. II (10–1–15 Edition) § 216.101

(b) Location and size of the official mark. The official mark on labels must allow the consumer to identify the offi-cial mark and be similar in design and scale to figure 1. A full color version of the official mark is available at http:// swr.ucsd.edu/dsl.htm.

[65 FR 34410, May 30, 2000. Redesignated at 69 FR 55307, Sept. 13, 2004]

Subpart I—General Regulations Governing Small Takes of Ma-rine Mammals Incidental to Specified Activities

SOURCE: 61 FR 15887, Apr. 10, 1996, unless otherwise noted.

§ 216.101 Purpose. The regulations in this subpart im-

plement section 101(a)(5) (A) through

(D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)(5), which provides a mechanism for allowing, upon request, the inci-dental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fish-ing) within a specified geographic re-gion.

§ 216.102 Scope. The taking of small numbers of ma-

rine mammals under section 101(a)(5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service:

(a) Finds, based on the best scientific evidence available, that the total tak-ing by the specified activity during the specified time period will have a neg-ligible impact on species or stock of

VerDate Sep<11>2014 12:21 Dec 03, 2015 Jkt 235239 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Q:\50\235239.XXX 31 ER

30M

Y00

.019

</G

PH

>

lpow

ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

65


marine mammal(s) and will not have an unmitigable adverse impact on the availability of those species or stocks of marine mammals intended for sub-sistence uses;

(b) Prescribes either regulations under § 216.106, or requirements and conditions contained within an inci-dental harassment authorization issued under § 216.107, setting forth permis-sible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsist-ence uses, paying particular attention to rookeries, mating grounds, and areas of similar significance; and

(c) Prescribes either regulations or requirements and conditions contained within an incidental harassment au-thorization, as appropriate, pertaining to the monitoring and reporting of such taking. The specific regulations governing certain specified activities are contained in subsequent subparts of this part.

§ 216.103 Definitions. In addition to definitions contained

in the MMPA, and in § 216.3, and unless the context otherwise requires, in sub-sequent subparts to this part:

Arctic waters means the marine and estuarine waters north of 60° N. lat.

Citizens of the United States and U.S. citizens mean individual U.S. citizens or any corporation or similar entity if it is organized under the laws of the United States or any governmental unit defined in 16 U.S.C. 1362(13). U.S. Federal, state and local government agencies shall also constitute citizens of the United States for purposes of this part.

Incidental harassment, incidental tak-ing and incidental, but not intentional, taking all mean an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, un-avoidable or accidental. (A complete definition of ‘‘take’’ is contained in § 216.3).

Negligible impact is an impact result-ing from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely

affect the species or stock through ef-fects on annual rates of recruitment or survival.

Small numbers means a portion of a marine mammal species or stock whose taking would have a negligible impact on that species or stock.

Specified activity means any activity, other than commercial fishing, that takes place in a specified geographical region and potentially involves the taking of small numbers of marine mammals.

Specified geographical region means an area within which a specified activity is conducted and that has certain bio-geographic characteristics.

Unmitigable adverse impact means an impact resulting from the specified ac-tivity:

(1) That is likely to reduce the avail-ability of the species to a level insuffi-cient for a harvest to meet subsistence needs by:

(i) Causing the marine mammals to abandon or avoid hunting areas;

(ii) Directly displacing subsistence users; or

(iii) Placing physical barriers be-tween the marine mammals and the subsistence hunters; and

(2) That cannot be sufficiently miti-gated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

§ 216.104 Submission of requests. (a) In order for the National Marine

Fisheries Service to consider author-izing the taking by U.S. citizens of small numbers of marine mammals in-cidental to a specified activity (other than commercial fishing), or to make a finding that an incidental take is un-likely to occur, a written request must be submitted to the Assistant Adminis-trator. All requests must include the following information for their activ-ity:

(1) A detailed description of the spe-cific activity or class of activities that can be expected to result in incidental taking of marine mammals;

(2) The date(s) and duration of such activity and the specific geographical region where it will occur;

(3) The species and numbers of ma-rine mammals likely to be found with-in the activity area;


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

66

50 CFR Ch. II (10–1–15 Edition) § 216.104

(4) A description of the status, dis-tribution, and seasonal distribution (when applicable) of the affected spe-cies or stocks of marine mammals like-ly to be affected by such activities;

(5) The type of incidental taking au-thorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking;

(6) By age, sex, and reproductive con-dition (if possible), the number of ma-rine mammals (by species) that may be taken by each type of taking identified in paragraph (a)(5) of this section, and the number of times such takings by each type of taking are likely to occur;

(7) The anticipated impact of the ac-tivity upon the species or stock of ma-rine mammal;

(8) The anticipated impact of the ac-tivity on the availability of the species or stocks of marine mammals for sub-sistence uses;

(9) The anticipated impact of the ac-tivity upon the habitat of the marine mammal populations, and the likeli-hood of restoration of the affected habitat;

(10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations in-volved;

(11) The availability and feasibility (economic and technological) of equip-ment, methods, and manner of con-ducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence uses, pay-ing particular attention to rookeries, mating grounds, and areas of similar significance;

(12) Where the proposed activity would take place in or near a tradi-tional Arctic subsistence hunting area and/or may affect the availability of a species or stock of marine mammal for Arctic subsistence uses, the applicant must submit either a plan of coopera-tion or information that identifies what measures have been taken and/or will be taken to minimize any adverse effects on the availability of marine mammals for subsistence uses. A plan must include the following:

(i) A statement that the applicant has notified and provided the affected

subsistence community with a draft plan of cooperation;

(ii) A schedule for meeting with the affected subsistence communities to discuss proposed activities and to re-solve potential conflicts regarding any aspects of either the operation or the plan of cooperation;

(iii) A description of what measures the applicant has taken and/or will take to ensure that proposed activities will not interfere with subsistence whaling or sealing; and

(iv) What plans the applicant has to continue to meet with the affected communities, both prior to and while conducting the activity, to resolve con-flicts and to notify the communities of any changes in the operation;

(13) The suggested means of accom-plishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes al-ready applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to deter-mine the movement and activity of marine mammals near the activity site(s) including migration and other habitat uses, such as feeding. Guide-lines for developing a site-specific mon-itoring plan may be obtained by writ-ing to the Director, Office of Protected Resources; and

(14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities re-lating to reducing such incidental tak-ing and evaluating its effects.

(b)(1) The Assistant Administrator shall determine the adequacy and com-pleteness of a request and, if deter-mined to be adequate and complete, will begin the public review process by publishing in the FEDERAL REGISTER ei-ther:

(i) A proposed incidental harassment authorization; or

(ii) A notice of receipt of a request for the implementation or re-implementation of regulations gov-erning the incidental taking.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

67


(2) Through notice in the FEDERAL REGISTER, newspapers of general cir-culation, and appropriate electronic media in the coastal areas that may be affected by such activity, NMFS will invite information, suggestions, and comments for a period not to exceed 30 days from the date of publication in the FEDERAL REGISTER. All informa-tion and suggestions will be considered by the National Marine Fisheries Serv-ice in developing, if appropriate, the most effective regulations governing the issuance of letters of authorization or conditions governing the issuance of an incidental harassment authoriza-tion.

(3) Applications that are determined to be incomplete or inappropriate for the type of taking requested, will be re-turned to the applicant with an expla-nation of why the application is being returned.

(c) The Assistant Administrator shall evaluate each request to determine, based upon the best available scientific evidence, whether the taking by the specified activity within the specified geographic region will have a neg-ligible impact on the species or stock and, where appropriate, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. If the Assistant Ad-ministrator finds that the mitigating measures would render the impact of the specified activity negligible when it would not otherwise satisfy that re-quirement, the Assistant Adminis-trator may make a finding of neg-ligible impact subject to such miti-gating measures being successfully im-plemented. Any preliminary findings of ‘‘negligible impact’’ and ‘‘no unmitigable adverse impact’’ shall be proposed for public comment along with either the proposed incidental harassment authorization or the pro-posed regulations for the specific activ-ity.

(d) If, subsequent to the public review period, the Assistant Administrator finds that the taking by the specified activity would have more than a neg-ligible impact on the species or stock of marine mammal or would have an unmitigable adverse impact on the availability of such species or stock for subsistence uses, the Assistant Admin-

istrator shall publish in the FEDERAL REGISTER the negative finding along with the basis for denying the request.

§ 216.105 Specific regulations. (a) For all petitions for regulations

under this paragraph, applicants must provide the information requested in § 216.104(a) on their activity as a whole, which includes, but is not necessarily limited to, an assessment of total im-pacts by all persons conducting the ac-tivity.

(b) For allowed activities that may result in incidental takings of small numbers of marine mammals by har-assment, serious injury, death or a combination thereof, specific regula-tions shall be established for each al-lowed activity that set forth:

(1) Permissible methods of taking; (2) Means of effecting the least prac-

ticable adverse impact on the species and its habitat and on the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting, including requirements for the independent peer-review of pro-posed monitoring plans where the pro-posed activity may affect the avail-ability of a species or stock for taking for subsistence uses.

(c) Regulations will be established based on the best available informa-tion. As new information is developed, through monitoring, reporting, or re-search, the regulations may be modi-fied, in whole or in part, after notice and opportunity for public review.

§ 216.106 Letter of Authorization. (a) A Letter of Authorization, which

may be issued only to U.S. citizens, is required to conduct activities pursuant to any regulations established under § 216.105. Requests for Letters of Au-thorization shall be submitted to the Director, Office of Protected Re-sources. The information to be sub-mitted in a request for an authoriza-tion will be specified in the appropriate subpart to this part or may be obtained by writing to the above named person.

(b) Issuance of a Letter of Authoriza-tion will be based on a determination that the level of taking will be con-sistent with the findings made for the total taking allowable under the spe-cific regulations.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

68

50 CFR Ch. II (10–1–15 Edition) § 216.107

(c) Letters of Authorization will specify the period of validity and any additional terms and conditions appro-priate for the specific request.

(d) Notice of issuance of all Letters of Authorization will be published in the FEDERAL REGISTER within 30 days of issuance.

(e) Letters of Authorization shall be withdrawn or suspended, either on an individual or class basis, as appro-priate, if, after notice and opportunity for public comment, the Assistant Ad-ministrator determines that:

(1) The regulations prescribed are not being substantially complied with; or

(2) The taking allowed is having, or may have, more than a negligible im-pact on the species or stock or, where relevant, an unmitigable adverse im-pact on the availability of the species or stock for subsistence uses.

(f) The requirement for notice and opportunity for public review in § 216.106(e) shall not apply if the Assist-ant Administrator determines that an emergency exists that poses a signifi-cant risk to the wellbeing of the spe-cies or stocks of marine mammals con-cerned.

(g) A violation of any of the terms and conditions of a Letter of Author-ization or of the specific regulations shall subject the Holder and/or any in-dividual who is operating under the au-thority of the Holder’s Letter of Au-thorization to penalties provided in the MMPA.

§ 216.107 Incidental harassment au-thorization for Arctic waters.

(a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under § 216.105, incidental harassment authorizations may be issued, fol-lowing a 30-day public review period, to allowed activities that may result in only the incidental harassment of a small number of marine mammals. Each such incidental harassment au-thorization shall set forth:

(1) Permissible methods of taking by harassment;

(2) Means of effecting the least prac-ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and

(3) Requirements for monitoring and reporting, including requirements for the independent peer-review of pro-posed monitoring plans where the pro-posed activity may affect the avail-ability of a species or stock for taking for subsistence uses.

(b) Issuance of an incidental harass-ment authorization will be based on a determination that the number of ma-rine mammals taken by harassment will be small, will have a negligible im-pact on the species or stock of marine mammal(s), and will not have an unmitigable adverse impact on the availability of species or stocks for taking for subsistence uses.

(c) An incidental harassment author-ization will be either issued or denied within 45 days after the close of the public review period.

(d) Notice of issuance or denial of an incidental harassment authorization will be published in the FEDERAL REG-ISTER within 30 days of issuance of a determination.

(e) Incidental harassment authoriza-tions will be valid for a period of time not to exceed 1 year but may be re-newed for additional periods of time not to exceed 1 year for each reauthor-ization.

(f) An incidental harassment author-ization shall be modified, withdrawn, or suspended if, after notice and oppor-tunity for public comment, the Assist-ant Administrator determines that:

(1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or

(2) The authorized taking, either in-dividually or in combination with other authorizations, is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses.

(g) The requirement for notice and opportunity for public review in para-graph (f) of this section shall not apply if the Assistant Administrator deter-mines that an emergency exists that poses a significant risk to the wellbeing of the species or stocks of marine mammals concerned.

(h) A violation of any of the terms and conditions of an incidental harass-ment authorization shall subject the


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

69


holder and/or any individual who is op-erating under the authority of the holder’s incidental harassment author-ization to penalties provided in the MMPA.

§ 216.108 Requirements for monitoring and reporting under incidental har-assment authorizations for Arctic waters.

(a) Holders of an incidental harass-ment authorization in Arctic waters and their employees, agents, and des-ignees must cooperate with the Na-tional Marine Fisheries Service and other designated Federal, state, or local agencies to monitor the impacts of their activity on marine mammals. Unless stated otherwise within an inci-dental harassment authorization, the holder of an incidental harassment au-thorization effective in Arctic waters must notify the Alaska Regional Direc-tor, National Marine Fisheries Service, of any activities that may involve a take by incidental harassment in Arc-tic waters at least 14 calendar days prior to commencement of the activ-ity.

(b) Holders of incidental harassment authorizations effective in Arctic wa-ters may be required by their author-ization to designate at least one quali-fied biological observer or another ap-propriately experienced individual to observe and record the effects of activi-ties on marine mammals. The number of observers required for monitoring the impact of the activity on marine mammals will be specified in the inci-dental harassment authorization. If ob-servers are required as a condition of the authorization, the observer(s) must be approved in advance by the National Marine Fisheries Service.

(c) The monitoring program must, if appropriate, document the effects (in-cluding acoustical) on marine mam-mals and document or estimate the ac-tual level of take. The requirements for monitoring plans, as specified in the incidental harassment authoriza-tion, may vary depending on the activ-ity, the location, and the time.

(d) Where the proposed activity may affect the availability of a species or stock of marine mammal for taking for subsistence purposes, proposed moni-toring plans or other research pro-

posals must be independently peer-re-viewed prior to issuance of an inci-dental harassment authorization under this subpart. In order to complete the peer-review process within the time frames mandated by the MMPA for an incidental harassment authorization, a proposed monitoring plan submitted under this paragraph must be sub-mitted to the Assistant Administrator no later than the date of submission of the application for an incidental har-assment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National Marine Fish-eries Service will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, sched-ule a workshop to review the plan. The applicant must submit a final moni-toring plan to the Assistant Adminis-trator prior to the issuance of an inci-dental harassment authorization.

(e) At its discretion, the National Marine Fisheries Service may place an observer aboard vessels, platforms, air-craft, etc., to monitor the impact of ac-tivities on marine mammals.

(f)(1) As specified in the incidental harassment authorization, the holder of an incidental harassment authoriza-tion for Arctic waters must submit re-ports to the Assistant Administrator within 90 days of completion of any in-dividual components of the activity (if any), within 90 days of completion of the activity, but no later than 120 days prior to expiration of the incidental harassment authorization, whichever is earlier. This report must include the following information:

(i) Dates and type(s) of activity; (ii) Dates and location(s) of any ac-

tivities related to monitoring the ef-fects on marine mammals; and

(iii) Results of the monitoring activi-ties, including an estimate of the ac-tual level and type of take, species name and numbers of each species ob-served, direction of movement of spe-cies, and any observed changes or modifications in behavior.

(2) Monitoring reports will be re-viewed by the Assistant Administrator and, if determined to be incomplete or inaccurate, will be returned to the


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

70

50 CFR Ch. II (10–1–15 Edition) § 216.108

holder of the authorization with an ex-planation of why the report is being re-turned. If the authorization holder dis-agrees with the findings of the Assist-ant Administrator, the holder may re-quest an independent peer review of the report. Failure to submit a complete and accurate report may result in a delay in processing future authoriza-tion requests.

(g) Results of any behavioral, feed-ing, or population studies, that are conducted supplemental to the moni-toring program, should be made avail-able to the National Marine Fisheries Service before applying for an inci-dental harassment authorization for the following year.

Subparts J–X [Reserved]


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

71

National Marine Fisheries Service/NOAA, Commerce Pt. 216, Fig 1

FIGURE 1 TO PART 216—NORTHERN FUR SEAL BREEDING AREAS (ROOKERIES) AND HAULING GROUNDS ON ST. GEORGE ISLAND, ALASKA

[79 FR 65338, Nov. 4, 2014]

VerDate Sep<11>2014 12:21 Dec 03, 2015 Jkt 235239 PO 00000 Frm 00081 Fmt 8010 Sfmt 8026 Q:\50\235239.XXX 31 ER

04N

O14

.000

</G

PH

>

lpow

ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

72

50 CFR Ch. II (10–1–15 Edition) Pt. 217

PART 217—REGULATIONS GOV-ERNING THE TAKE OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES

Subpart A [Reserved]

Subpart B—Taking of Marine Mammals In-cidental to Coastal Commercial Fire-works Displays at Monterey Bay Na-tional Marine Sanctuary, CA

Sec. 217.11 Specified activity and specified geo-

graphical region. 217.12 Effective dates. 217.13 Permissible methods of taking. 217.14 Prohibitions. 217.15 Mitigation. 217.16 Requirements for monitoring and re-

porting. 217.17 Letters of Authorization. 217.18 Renewals and Modifications of Let-

ters of Authorization.

Subparts C–E [Reserved]

Subpart F—Taking of Marine Mammals In-cidental To Target and Missile Launch Activities From San Nicolas Island, CA

217.50 Specified activity and specified geo-graphical region.

217.51 Effective dates. 217.52 Permissible methods of taking. 217.53 Prohibitions. 217.54 Mitigation. 217.55 Requirements for monitoring and re-

porting. 217.56 Applications for Letters of Authoriza-

tion. 217.57 Letters of Authorization. 217.58 Renewal and modifications of Letters

of Authorization.

Subpart G—Taking of Marine Mammals In-cidental to U.S. Air Force Launches, Aircraft and Helicopter Operations, and Harbor Activities Related to Launch Vehicles From Vandenberg Air Force Base (VAFB), California



porting. 217.66 Letters of Authorization.

217.67 Renewals and modifications of Let-ters of Authorization.

Subpart H—Taking of Marine Mammals In-cidental to Space Vehicle and Missile Launches at Kodiak Launch Complex, Alaska



porting. 217.76 Letter of Authorization. 217.77 Renewal of a Letter of Authorization

and adaptive management. 217.78 Modifications to a Letter of Author-

ization.

Subpart I—Taking of Marine Mammals In-cidental to Naval Explosive Ordnance Disposal School Training Operations



porting. 217.86 Applications for Letters of Authoriza-

tion. 217.87 Letters of Authorization. 217.88 Renewal and review of Letters of Au-

thorization and adaptive management. 217.89 Modifications of Letters of Author-

ization.

Subparts J–K [Reserved]

Subpart L—Taking Marine Mammals Inci-dental to Conducting Precision Strike Weapon and Air-to-Surface Gunnery Missions at Eglin Gulf Test and Training Range (EGTTR) in the Gulf of Mexico



porting. 217.116 Applications for Letters of Author-

ization. 217.117 Letters of Authorization. 217.118 Renewals and Modifications of Let-



ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

73


Subparts M–N [Reserved]

Subpart O—Taking of Marine Mammals In-cidental to Operation of Offshore Oil and Gas Facilities in the U.S. Beaufort Sea


217.141 Effective dates. 217.142 Permissible methods of taking. 217.143 Prohibitions. 217.144 Mitigation. 217.145 Measures to ensure availability of

species for subsistence uses. 217.146 Requirements for monitoring and re-


ization. 217.148 Letters of Authorization. 217.149 Renewal of Letters of Authorization

and adaptive management. 217.150 Modifications of Letters of Author-

ization.

Subpart P—Taking Marine Mammals Inci-dental to Construction and Operation of a Liquefied Natural Gas Deepwater Port in the Gulf of Mexico





Subpart Q [Reserved]

Subpart R—Taking of Marine Mammals In-cidental to Operation and Mainte-nance of the Neptune Liquefied Nat-ural Gas Facility Off Massachusetts




ization. 217.177 Letters of Authorization. 217.178 Renewal of Letters of Authorization

and adaptive management. 217.179 Modifications of Letters of Author-

ization

Subparts S–T [Reserved]

Subpart U—Taking Of Marine Mammals In-cidental To The Port of Anchorage Ma-rine Terminal Redevelopment Project

217.200 Specified activities and specified geographical region.



ization. 217.207 Letters of Authorization. 217.208 Renewal of Letters of Authorization. 217.209 Modifications of Letters of Author-

ization.

Subpart W—Taking and Importing Marine Mammals; Elliott Bay Seawall Project


217.221 Effective dates and definitions. 217.222 Permissible methods of taking. 217.223 Prohibitions. 217.224 Mitigation. 217.225 Requirements for monitoring and re-



AUTHORITY: 16 U.S.C. 1361 et seq., unless otherwise noted.

SOURCE: 74 FR 35143, July 20, 2009, unless otherwise noted.

Subpart A [Reserved]

Subpart B—Taking of Marine Mammals Incidental to Coastal Commercial Fire-works Displays at Monterey Bay National Marine Sanc-tuary, CA

SOURCE: 77 FR 31544, May 29, 2012, unless otherwise noted.

EFFECTIVE DATE NOTE: At 77 FR 31544, May 29, 2012, subpart B was added, effective June 28, 2012, through June 28, 2017.

§ 217.11 Specified activity and speci-fied geographical region.

(a) Regulations in this subpart apply only to the Monterey Bay National Ma-rine Sanctuary (MBNMS) and those


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

74

50 CFR Ch. II (10–1–15 Edition) § 217.12

persons it authorizes to display fire-works within the MBNMS for the tak-ing of marine mammals that occurs in the area described in paragraph (b) of this section and that occurs incidental to authorization of commercial fire-works displays.

(b) The taking of marine mammals by MBNMS may be authorized in a Let-ter of Authorization (LOA) only if it occurs in waters of the MBNMS.

§ 217.12 Effective dates.

Regulations in this subpart are effec-tive from June 28, 2012, through June 28, 2017.

§ 217.13 Permissible methods of tak-ing.

(a) Under LOAs issued pursuant to §§ 216.106 and 217.17 of this chapter, the Holder of the LOA (hereinafter ‘‘MBNMS’’) may incidentally, but not intentionally, take marine mammals within the area described in § 217.11(b) of this chapter, provided the activity is in compliance with all terms, condi-tions, and requirements of the regula-tions in this subpart and the appro-priate LOA.

(b) The incidental take of marine mammals under the activities identi-fied in § 217.11(a) of this chapter is lim-ited to the following species and is lim-ited to Level B Harassment:

(1) Harbor seal (Phoca vitulina)—1,150 (an average of 230 annually)

(2) California sea lion (Zalophus californianus)—21,095 (an average of 4,219 annually)

§ 217.14 Prohibitions.

Notwithstanding takings con-templated in § 217.11 of this chapter and authorized by a LOA issued under §§ 216.106 and 217.17 of this chapter, no person in connection with the activi-ties described in § 217.11 of this chapter may:

(a) Take any marine mammal not specified in § 217.13(b) of this chapter;

(b) Take any marine mammal speci-fied in § 217.13(b) of this chapter other than by incidental, unintentional Level B harassment;

(c) Take a marine mammal specified in § 217.13(b) of this chapter if such tak-ing results in more than a negligible

impact on the species or stocks of such marine mammal; or

(d) Violate, or fail to comply with, the terms, conditions, and require-ments of this subpart or a LOA issued under §§ 216.106 and 217.17 of this chap-ter.

§ 217.15 Mitigation. (a) The activity identified in

§ 217.11(a) of this chapter must be con-ducted in a manner that minimizes, to the greatest extent practicable, ad-verse impacts on marine mammals and their habitats. When conducting the activities identified in § 217.11(a) of this chapter, the mitigation measures con-tained in the LOA issued under §§ 216.106 and 217.17 of this chapter must be implemented. These mitigation measures include but are not limited to:

(1) Limiting the location of the au-thorized fireworks displays to the four specifically designated areas at Half Moon Bay, the Santa Cruz/Soquel area, the northeastern Monterey Break-water, and Cambria (Santa Rosa Creek);

(2) Limiting the frequency of author-ized fireworks displays to no more than twenty total displays per year and no more than one fireworks display every 2 months in each of the four prescribed areas;

(3) Limiting the duration of author-ized individual fireworks displays to no longer than 30 minutes each, with the exception of two longer shows not to exceed 1 hour;

(4) Prohibiting fireworks displays at MBNMS between March 1 and June 30 of any year; and

(5) Continuing to implement author-ization requirements and general and special restrictions for each event, as determined by MBNMS. Standard re-quirements include, but are not limited to, the use of a ramp-up period, where-in salutes are not allowed in the first 5 minutes of the display; the removal of plastic and aluminum labels and wrap-pings; and post-show reporting and cleanup. MBNMS shall continue to as-sess displays and restrict the number of aerial salute effects on a case-by- case basis, and shall implement general and special restrictions unique to each fireworks event as necessary.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

75


(b) The mitigation measures that the individuals conducting the fireworks are responsible for will be included as a requirement in fireworks display au-thorizations issued by MBNMS to the individual entities.

§ 217.16 Requirements for monitoring and reporting.

(a) MBNMS is responsible for ensur-ing that all monitoring required under a LOA is conducted appropriately, in-cluding, but not limited to:

(1) A census of all pinnipeds in the impact area on the day prior to all dis-plays, with observations to occur for no less than 30 minutes, and

(2) Reporting to NMFS of all marine mammal injury, serious injury, or mor-tality observed in the vicinity of the display area. Monitoring for injury, se-rious injury, or mortality shall occur no later than the morning after each fireworks display, and shall occur for no less than 30 minutes.

(b) Unless specified otherwise in the LOA, MBNMS must submit a draft an-nual monitoring report to the Director, Office of Protected Resources, NMFS, no later than 60 days after the conclu-sion of each calendar year. This report must contain:

(1) An estimate of the number of ma-rine mammals disturbed by the author-ized activities,

(2) Results of the monitoring re-quired in § 217.16(a) of this chapter, and any additional information required by the LOA. A final annual monitoring re-port must be submitted to NMFS with-in 30 days after receiving comments from NMFS on the draft report. If no comments are received from NMFS, the draft report will be considered to be the final annual monitoring report.

(c) A draft comprehensive monitoring report on all marine mammal moni-toring conducted during the period of these regulations must be submitted to the Director, Office of Protected Re-sources, NMFS at least 120 days prior to expiration of these regulations. A final comprehensive monitoring report must be submitted to the NMFS within 30 days after receiving comments from NMFS on the draft report. If no com-ments are received from NMFS, the draft report will be considered to be

the final comprehensive monitoring re-port.

§ 217.17 Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regula-tions, MBNMS must apply for and ob-tain a LOA.

(b) A LOA, unless suspended or re-voked, may be effective for a period of time not to exceed the expiration date of these regulations.

(c) If an LOA expires prior to the ex-piration date of these regulations, MBNMS must apply for and obtain a renewal of the LOA.

(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, MBNMS must apply for and ob-tain a modification of the LOA as de-scribed in § 217.18 of this chapter.

(e) The LOA shall set forth: (1) Permissible methods of incidental

taking; (2) Means of effecting the least prac-

ticable adverse impact (i.e., mitiga-tion) on the species, its habitat, and on the availability of the species for sub-sistence uses; and

(3) Requirements for monitoring and reporting.

(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the find-ings made for the total taking allow-able under these regulations.

(g) Notice of issuance or denial of a LOA shall be published in the FEDERAL REGISTER within 30 days of a deter-mination.

§ 217.18 Renewals and modifications of Letters of Authorization.

(a) A LOA issued under §§ 216.106 and 217.17 of this chapter for the activity identified in § 217.11(a) of this chapter shall be renewed or modified upon re-quest by the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and re-porting measures, as well as the antici-pated impacts, are the same as those described and analyzed for these regu-lations (excluding changes made pursu-ant to the adaptive management provi-sion in § 217.18(c)(1) of this chapter), and


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

76

50 CFR Ch. II (10–1–15 Edition) § 217.50

(2) NMFS determines that the miti-gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple-mented.

(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga-tion, monitoring, or reporting (exclud-ing changes made pursuant to the adaptive management provision in § 217.18(c)(1) of this chapter) that do not change the findings made for the regu-lations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the FEDERAL REGISTER, including the associated analysis illustrating the change, and solicit public comment before issuing the LOA .

(c) A LOA issued under §§ 217.106 and 217.17 of this chapter for the activity identified in § 217.11(a) of this chapter may be modified by NMFS under the following circumstances:

(1) Adaptive Management—NMFS may modify (including augment) the existing mitigation, monitoring, or re-porting measures (after consulting with MBNMS regarding the practica-bility of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regula-tions.

(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or report-ing measures in an LOA:

(A) Results from MBNMS’s moni-toring from the previous year(s).

(B) Results from other marine mam-mal and/or sound research or studies.

(C) Any information that reveals ma-rine mammals may have been taken in a manner, extent or number not au-thorized by these regulations or subse-quent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no-tice of proposed LOA in the FEDERAL REGISTER and solicit public comment.

(2) Emergencies—If NMFS deter-mines that an emergency exists that

poses a significant risk to the wellbeing of the species or stocks of marine mammals specified in § 217.13(b) of this chapter, an LOA may be modified with-out prior notice or opportunity for pub-lic comment. Notification would be published in the FEDERAL REGISTER within 30 days of the action.

Subparts C–E [Reserved]

Subpart F—Taking of Marine Mammals Incidental To Target and Missile Launch Activities From San Nicolas Island, CA

SOURCE: 79 FR 32684, June 3, 2014, unless otherwise noted.

EFFECTIVE DATE NOTE: At 79 FR 32684, June 3, 2014, subpart F was added, effective June 3, 2014, through June 3, 2019.


(a) Regulations in this subpart apply only to the incidental taking of marine mammals specified in paragraph (b) of this section by the Naval Air Warfare Center Weapons Division, U.S. Navy, and those persons it authorizes to en-gage in target missile launch activities and associated aircraft and helicopter operations at the Naval Air Warfare Center Weapons Division facilities on San Nicolas Island, California.

(b) The incidental take of marine mammals under the activity identified in paragraph (a) of this section is lim-ited to the following species: Northern elephant seals (Mirounga angustirostris), harbor seals (Phoca vitulina), and Cali-fornia sea lions (Zalophus californianus).

(c) This Authorization is valid only for activities associated with the launching of a total of 40 vehicles (e.g., RAM, Coyote, MSST, Terrier, SM–3, or similar) from Alpha Launch Complex and smaller missiles and targets from Building 807 on San Nicolas Island, California.


Regulations in this subpart are effec-tive from June 3, 2014, through June 3, 2019.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

77


§ 217.52 Permissible methods of tak-ing.

(a) Under Letters of Authorization issued pursuant to § 216.106 and 217.57 of this chapter, the Holder of the Letter of Authorization may incidentally, but not intentionally, take marine mam-mals by harassment, within the area described in § 217.50, provided the activ-ity is in compliance with all terms, conditions, and requirements of the regulations and the appropriate Letter of Authorization.

(b) The activities identified in § 217.50 must be conducted in a manner that minimizes, to the greatest extent prac-ticable, any adverse impacts on marine mammals and their habitat.

(c) The incidental take of marine mammals is authorized for the species listed in § 217.50(b) and is limited to Level B Harassment.

§ 217.53 Prohibitions. Notwithstanding takings con-

templated in § 217.50 and authorized by a Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter, no person in connection with the activi-ties described in § 217.50 may:

(a) Take any marine mammal not specified in § 217.50(b);

(b) Take any marine mammal speci-fied in § 217.50(b) other than by inci-dental, unintentional harassment;

(c) Take a marine mammal specified in § 217.50(b) if such taking results in more than a negligible impact on the species or stocks of such marine mam-mal; or

(d) Violate, or fail to comply with, the terms, conditions, and require-ments of this subpart or a Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter.

§ 217.54 Mitigation. (a) When conducting operations iden-

tified in § 217.50(c), the mitigation measures contained in the Letter of Authorization issued under §§ 216.106 and 217.57 must be implemented. These mitigation measures include, but are not limited to:

(1) The holder of the Letter of Au-thorization must not enter pinniped haul-out sites below the missile’s pre-dicted flight path for 2 hours prior to planned missile launches.

(2) The holder of the Letter of Au-thorization must avoid, whenever pos-sible, launch activities during harbor seal pupping season (February to April), unless constrained by factors including, but not limited to, human safety, national security, or for vehicle launch trajectory necessary to meet mission objectives.

(3) The holder of the Letter of Au-thorization must limit, whenever pos-sible, launch activities during other pinniped pupping seasons, unless con-strained by factors including, but not limited to, human safety, national se-curity, or for vehicle launch trajectory necessary to meet mission objectives.

(4) The holder of the Letter of Au-thorization must not launch vehicles from the Alpha Complex at low ele-vation (less than 1,000 feet (305 m)) on launch azimuths that pass close to pinniped haul-out sites when occupied.

(5) The holder of the Letter of Au-thorization must avoid, where prac-ticable, launching multiple target mis-siles in quick succession over haul-out sites, especially when young pups are present.

(6) The holder of the Letter of Au-thorization must limit launch activi-ties during nighttime hours, except when required by the test objectives.

(7) Aircraft and helicopter flight paths must maintain a minimum alti-tude of 1,000 feet (305 m) from pinniped haul-outs and rookeries, except in emergencies or for real-time security incidents (e.g., search-and-rescue, fire- fighting), which may require approach-ing pinniped haul-outs and rookeries closer than 1,000 feet (305 m).

(8) If post-launch surveys determine that an injurious or lethal take of a marine mammal has occurred or there is an indication that the distribution, size, or productivity of the potentially affected pinniped populations has been affected, the launch procedure and the monitoring methods must be reviewed, in cooperation with NMFS, and, if nec-essary, appropriate changes must be made through modification to a Letter of Authorization, prior to conducting the next launch of the same vehicle under that Letter of Authorization.

(9) Additional mitigation measures as contained in a Letter of Authorization.

(b) [Reserved]


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

78

50 CFR Ch. II (10–1–15 Edition) § 217.55

§ 217.55 Requirements for monitoring and reporting.

(a) Unless specified otherwise in the Letter of Authorization, the Holder of the Letter of Authorization must no-tify the Administrator, West Coast Re-gion, NMFS, by letter or telephone, at least 2 weeks prior to activities pos-sibly involving the taking of marine mammals. If the authorized activity identified in § 217.50 is thought to have resulted in the mortality or injury of any marine mammals or in any take of marine mammals not identified in § 217.50(b), then the Holder of the Letter of Authorization must notify the Di-rector, Office of Protected Resources, NMFS, or designee, by telephone (301– 427–8401), and the Administrator, West Coast Region, NMFS, or designee, by telephone (562–980–3232), within 48 hours of the discovery of the injured or dead animal.

(b) The National Marine Fisheries Service must be informed immediately of any changes or deletions to any por-tions of the proposed monitoring plan submitted, in accordance with the Let-ter of Authorization.

(c) The holder of the Letter of Au-thorization must designate biologically trained, on-site individual(s), approved in advance by NMFS, to record the ef-fects of the launch activities and the resulting noise on pinnipeds.

(d) The holder of the Letter of Au-thorization must implement the fol-lowing monitoring measures:

(1) Visual land-based monitoring. (i) Prior to each missile launch, an ob-server(s) will place three autonomous digital video cameras overlooking cho-sen haul-out sites located varying dis-tances from the missile launch site. Each video camera will be set to record a focal subgroup within the larger haul-out aggregation for a maximum of 4 hours or as permitted by the video-tape capacity.

(ii) Systematic visual observations, by those individuals, described in para-graph (c) of this section, of pinniped presence and activity will be conducted and recorded in a field logbook a min-imum of 2 hours prior to the estimated launch time and for no less than 1 hour immediately following the launch of target missiles.

(iii) Systematic visual observations, by those individuals, described in para-graph (c) of this section, of pinniped presence and activity will be conducted and recorded in a field logbook a min-imum of 2 hours prior to launch, during launch, and for no less than 1 hour after the launch of the BQM–34, BQM– 74, Tomahawk, RAM target and similar types of missiles.

(iv) Documentation, both via autono-mous video camera and human ob-server, will consist of:

(A) Numbers and sexes of each age class in focal subgroups;

(B) Description and timing of launch activities or other disruptive event(s);

(C) Movements of pinnipeds, includ-ing number and proportion moving, di-rection and distance moved, and pace of movement;

(D) Description of reactions; (E) Minimum distances between

interacting and reacting pinnipeds; (F) Study location; (G) Local time; (H) Substratum type; (I) Substratum slope; (J) Weather condition; (K) Horizontal visibility; and (L) Tide state. (2) Acoustic monitoring. (i) During all

target missile launches, calibrated re-cordings of the levels and characteris-tics of the received launch sounds will be obtained from three different loca-tions of varying distances from the tar-get missile’s flight path. To the extent practicable, these acoustic recording locations will correspond with the haul-out sites where video and human observer monitoring is done.

(ii) Acoustic recordings will be sup-plemented by the use of radar and te-lemetry systems to obtain the trajec-tory of target missiles in three dimen-sions.

(iii) Acoustic equipment used to record launch sounds will be suitable for collecting a wide range of param-eters, including the magnitude, charac-teristics, and duration of each target missile.

(e) The holder of the Letter of Au-thorization must implement the fol-lowing reporting requirements:

(1) For each target missile launch, the lead contractor or lead observer for


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

79


the holder of the Letter of Authoriza-tion must provide a status report to NMFS, West Coast Regional Office, providing reporting items found under the Letter of Authorization, unless other arrangements for monitoring are agreed upon in writing.

(2) The Navy shall submit an annual report describing their activities and including the following information:

(i) Timing, number, and nature of launch operations;

(ii) Summary of mitigation and mon-itoring implementation;

(iii) Summary of pinniped behavioral observations; and

(iv) Estimate of the amount and na-ture of all takes by harassment or by other means.

(3) The Navy shall submit a draft comprehensive technical report to the Office of Protected Resources and West Coast Regional Office, NMFS, 180 days prior to the expiration of the regula-tions in this subpart, providing full documentation of the methods, results, and interpretation of all monitoring tasks for launches to date plus prelimi-nary information for missile launches during the first 6 months of the regula-tions.

(4) A revised final comprehensive technical report, including all moni-toring results during the entire period of validity of the Letter of Authoriza-tion, will be due 90 days after the end of the period of effectiveness of the reg-ulations in this subpart.

(5) The final report will be subject to review and comment by NMFS. Any recommendations made by NMFS must be addressed in the final comprehen-sive technical report prior to accept-ance by NMFS.

(f) Activities related to the moni-toring described in paragraphs (c) and (d) of this section, or in the Letter of Authorization issued under §§ 216.106 and 217.57 of this chapter, including the retention of marine mammals, may be conducted without the need for a sepa-rate scientific research permit.

(g) In coordination and compliance with appropriate Navy regulations, the NMFS may, at its discretion, place an observer on San Nicolas Island for any activity involved in marine mammal monitoring either prior to, during, or

after a missile launch in order to mon-itor the impact on marine mammals.

§ 217.56 Applications for Letters of Au-thorization.

To incidentally take marine mam-mals pursuant to the regulations in this subpart, the U.S. citizen (as de-fined by § 216.6 of this chapter) con-ducting the activity identified in § 217.50 (the U.S. Navy) must apply for and obtain either an initial LOA in ac-cordance with § 217.57 or a renewal under § 217.58.

§ 217.57 Letters of Authorization. (a) A Letter of Authorization, unless

suspended or revoked, will be valid for a period of time not to exceed the pe-riod of validity of this subpart.

(b) Each Letter of Authorization will set forth:

(1) Permissible methods of incidental taking;

(2) Means of effecting the least prac-ticable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (i.e., mitigation); and

(3) Requirements for mitigation, monitoring, and reporting.

(c) Issuance and renewal of the Let-ter of Authorization will be based on a determination that the total number of marine mammals taken by the activity as a whole will have no more than a negligible impact on the affected spe-cies or stock of marine mammal(s).

§ 217.58 Renewals and Modifications of Letters of Authorization.

(a) A Letter of Authorization issued under §§ 216.106 and 217.57 of this chap-ter for the activity identified in § 217.50 will be renewed or modified upon re-quest of the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and re-porting measures as well as the antici-pated impacts, are the same as those described and analyzed for these regu-lations (excluding changes made pursu-ant to the adaptive management provi-sion of this chapter), and;

(2) NMFS determines that the miti-gation, monitoring, and reporting measures required by the previous LOA under these regulations were imple-mented.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

80

50 CFR Ch. II (10–1–15 Edition) § 217.60

(b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitiga-tion, monitoring, or reporting meas-ures (excluding changes made pursuant to the adaptive management provision of this chapter) that do not change the findings made for the regulations or re-sult in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of pro-posed LOA in the FEDERAL REGISTER, including the associated analysis illus-trating the change, and solicit public comments before issuing the LOA.

(c) An LOA issued under §§ 216.106 and 217.57 of this chapter for the activity identified in § 217.50 may be modified by NMFS under the following cir-cumstances:

(1) Adaptive management. NMFS may modify (including augment) the exist-ing mitigation, monitoring, or report-ing measures (after consulting with the Navy regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effec-tively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

(i) Possible sources of data could con-tribute to the decision to modify the mitigation, monitoring, and reporting measures in an LOA:

(A) Results from the Navy’s moni-toring from the previous year(s);

(B) Results from other marine mam-mal and/or sound research or studies; or

(C) Any information that reveals ma-rine mammals may have been taken in a manner, extent, or number not au-thorized by these regulations or subse-quent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a no-tice of proposed LOA in the FEDERAL REGISTER and solicit public comment.

(2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 217.50(b), a Letter of Au-thorization may be modified without prior notice or opportunity for public comment. Notice would be published in

the FEDERAL REGISTER within 30 days of the action.

Subpart G—Taking of Marine Mammals Incidental to U.S. Air Force Launches, Aircraft and Helicopter Operations, and Harbor Activities Related to Launch Vehicles From Van-denberg Air Force Base (VAFB), California

SOURCE: 79 FR 10026, Feb. 24, 2014, unless otherwise noted.

EFFECTIVE DATE NOTE: At 79 FR 10026, Feb. 24, 2014, subpart H was added, effective from Mar. 26, 2014, through Mar. 26, 2019.


(a) Regulations in this subpart apply only to the 30th Space Wing, United States Air Force (USAF), at Vanden-berg Air Force Base and those persons it authorizes to conduct activities on its behalf for the taking of marine mammals that occurs in the area out-lined in paragraph (b) of this section and that occurs incidental to:

(1) Launching up to 15 space and each year from Vandenberg Air Force Base, for a total of up to 75 missiles over the 5-year period of these regulations,

(2) Launching up to 35 rockets each year from Vandenberg Air Force Base, for a total of up to 175 rocket launches over the 5-year period of these regula-tions,

(3) Aircraft flight test operations, (4) Helicopter operations from Van-

denberg Air Force Base, and (5) Delta Mariner (or a similar vessel)

operations, cargo unloading activities, and harbor maintenance dredging.

(b) The taking of marine mammals by the USAF may be authorized in a Letter of Authorization only if it oc-curs from the space launch complexes, launch facilities, and test pads on north and south Vandenberg Air Force Base and the Vandenberg Air Force Base harbor on South Base.


Regulations in this subpart are effec-tive from March 26, 2014 through March 26, 2019.


ell o

n D

SK

54D

XV

N1O

FR

with

$$_

JOB

hupperts

Cross-Out

subpart f—pribilof islands, taking for subsistence purposes

Documents