Small Takes of Marine Mammals; Harassment Takings Incidental to Specified Activities

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 228

[Docket No. 950504128-5128-01; I.D. 031095A]

RIN 0648-AG80

Small Takes of Marine Mammals; Harassment Takings Incidental to

Specified Activities

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Marine Mammal Protection Act (MMPA) Amendments of 1994

established an expedited process by which citizens of the United States

can apply for an authorization to take incidentally, but not

intentionally, small numbers of marine mammals by harassment. This

proposed rule sets forth the process for applying for and obtaining an

authorization; the time limits set by the statute for NMFS review,

publication, and public notice and comment on any applications for

authorization that would be granted; and the requirements for

submission of a plan of cooperation and for scientific peer review of

an applicant's monitoring plans (if that activity may affect the

availability of a species or stock of marine mammal for taking for

subsistence purposes). This rule also proposes changes to the existing

regulations to clarify the requirements for obtaining a small take

authorization. If implemented, this rule would result in a more

streamlined and cost-effective method for obtaining small take by

incidental harassment authorizations, without lessening the MMPA's

[[Page 28380]] protection of species and stocks of marine mammals.

DATES: Comments must be received no later than July 17, 1995.

ADDRESSES: Written comments on the proposed rule should be addressed to

Chief, Marine Mammal Division, Office of Protected Resources, National

Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD

20910-3226. A copy of the Environmental Assessment (EA) may be obtained

by writing to this address or by telephoning the contact listed below.

Comments regarding the burden-hour estimate or any other aspect of

the collection of information requirement contained in this rule should

be sent to the above individual and to the Office of Information and

Regulatory Affairs, Office of Management and Budget (OMB), Attention:

NOAA Desk Officer, Washington, D.C. 20503.

FOR FURTHER INFORMATION CONTACT: Kenneth R. Hollingshead, Office of

Protected Resources, NMFS, (301) 713-2055.

SUPPLEMENTARY INFORMATION:

Background

Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1361 et seq.), as

enacted in 1981, directs the Secretary of Commerce to allow, upon

request by U.S. citizens engaged in a specific activity (other than

commercial fishing) in a specified geographical region, the incidental,

but not intentional, taking of small numbers of marine mammals, if

certain findings are made and regulations are issued. Under the MMPA,

the term ``taking'' means to harass, hunt, capture or kill. Pursuant to

implementing regulations published on May 18, 1982 (47 FR 21248),

permission may be granted for periods up to 5 years if NMFS finds,

after notice and opportunity for public comment, that the taking will

have a negligible impact on the species or stock(s) of marine mammals

and will not have an unmitigable adverse impact on the availability of

the species or stock(s) for subsistence uses. In addition, NMFS must

prescribe activity-specific regulations that include permissible

methods of taking and other means effecting the least practicable

adverse impact on the species and its habitat, and on the availability

of the species for subsistence uses, paying particular attention to

rookeries, mating grounds and areas of similar significance. These

regulations must include requirements pertaining to the monitoring and

reporting of such taking.

In 1986, the MMPA and the Endangered Species Act (16 U.S.C. 1531 et

seq.) were amended to authorize incidental takings of depleted,

endangered, or threatened marine mammals. Prior to the 1986 amendments,

section 101(a)(5) of the MMPA applied only to non-depleted marine

mammals. On September 29, 1989 (54 FR 40338), NMFS and the U.S. Fish

and Wildlife Service, jointly published regulations expanding the scope

of the 1982 regulations to include depleted marine mammals, revising

the definition of negligible impact, and adding a new definition for

unmitigable adverse impact.

However, concern was expressed by some during Congressional

oversight on the MMPA that the regulatory process for authorizing small

takes remained lengthy, cumbersome, and with little correlation to the

level of interaction between the activity and marine mammals or the

degree of potential harm to the species or stock. The net result, these

commenters believed, was that scarce Government resources were being

misallocated and that compliance with the MMPA was not encouraged

because of the length of time necessary to obtain an authorization.

On April 30, 1994, the President signed Public Law 103-238, the

Marine Mammal Protection Act Amendments of 1994. One part of this law

amended section 101(a)(5) of the MMPA to establish an expedited process

by which citizens of the United States can apply for an authorization

to incidentally take small numbers of marine mammals by harassment. It

established specific time limits for public notice and comment on any

requests for authorization which would be granted under this new

provision. The legislative history noted however, that in some

instances, requests will be made for authorizations identical to ones

issued in the previous year. According to the legislative history, in

such circumstances Congress expects NMFS to act expeditiously in

complying with the notice and comment requirements. There is no need in

such a case, the legislative history notes, for NMFS to use the full

120 days allowed. The legislative history also notes that NMFS should

use the general rulemaking authority available under section 112 of the

MMPA to establish a process for granting authorization in the case of

small takes by harassment in the Arctic Ocean (H.R. Rep. No. 439, 103d

Cong., 2d Sess. 29, 30 (Mar. 21, 1994)).

Proposed Action

NMFS is proposing to modify existing regulations found at 50 CFR

part 228, subpart A to include the simplified process for authorizing

the incidental taking of small numbers of marine mammals by harassment

without the need to issue specific regulations governing the taking of

marine mammals for each and every activity. The proposed rule sets

forth: (1) The process for obtaining an authorization; (2) the specific

time limits imposed by the statute for NMFS review and publication, and

public notice and comment, on any requests for authorization that would

be granted under this paragraph; and (3) the requirements for

scientific peer review of an applicant's monitoring plans and

submission of a plan of cooperation (if the subject activity may affect

the availability of a species or stock of marine mammal for taking for

subsistence purposes). The proposed rule also incorporates the

definition of ``harassment'' added by statute and would make minor

changes to the existing regulations to clarify the requirements for

obtaining a small take authorization.

Discussion

Scope of Incidental Harassment Authorizations

In the 1994 Amendments to the MMPA, Congress defined the term

``harassment'' as: ``any act of pursuit, torment, or annoyance, which

(i) has the potential to injure a marine mammal or marine mammal stock

in the wild'' (Level A harassment); or ``(ii) has the potential to

disturb a marine mammal or marine mammal stock in the wild by causing

disruption of behavioral patterns, including, but not limited to,

migration, breathing, nursing, breeding, feeding, or sheltering''

(Level B harassment). For the purpose of incidental harassment

authorizations, NMFS proposes to limit the use of those authorizations

for harassment involving the ``potential to injure'' to only incidental

harassment that may involve non-serious injury. Serious injury for

marine mammals, such as permanent hearing or eyesight loss, or severe

trauma, could lead fairly quickly to the animal's death. NMFS does not

believe that Congress intended to allow ``incidental harassment''

takings to include injuries that are likely to result in mortality,

even where such incidental harassment involves only small numbers of

marine mammals. Therefore, if the review of an application for

incidental harassment indicates that there is a potential for serious

injury or death, NMFS proposes that it would either (1) determine that

the potential for serious injury can be negated through mitigation

requirements that could be required under the authorization or (2) deny

the incidental harassment authorization and require [[Page 28381]] the

applicant to petition for a regulated small take authorization under 50

CFR 228.5. For example, if an application indicates that an acoustic

source at its maximum output level has the potential to cause a

temporary threshold shift in a marine mammal's hearing ability, that

taking would constitute a ``harassment'' take, since the animal's

hearing ability would recover and the section 101(a)(5)(D) application

would be appropriate. However, if the acoustic source at its maximum

level had the potential to cause a permanent threshold shift in a

marine mammal's hearing ability, that activity would be considered to

be capable of causing serious injury to a marine mammal and would

therefore not be appropriate for an incidental harassment

authorization.

Applications

New section 101(a)(5)(D)(iii) of the MMPA requires NMFS to publish

a proposed authorization not later than 45 days after receiving an

application under this subparagraph. However, NMFS does not publish

notices, but rather files notices with the Office of the Federal

Register (OFR) for publication. Actual publication normally occurs in

the Federal Register 3 to 4 days after receipt at the OFR. The

occurrence of weekends and holidays after the receipt date of the

application at NMFS, coupled with the days between delivery of a notice

of proposed authorization at the OFR and the actual date of publication

in the Federal Register, often would compress NMFS' review time to less

than 30 working days. As a result, in order for NMFS to accept an

incidental harassment application, such application must be complete,

accurate (to the extent possible), and address in some detail the

information items requested as part of the application. If an

application does not provide documentary evidence sufficient for NMFS

to make a preliminary determination that the activity is likely to

result in only a small take (by harassment) of marine mammals and have

no more than a negligible impact on the species or stocks impacted or

their habitat, NMFS will return the application as incomplete.

NMFS will make a final determination on the application within 45

days after the close of the public review period and will publish

notice of the final disposition in the Federal Register within 30 days

of issuance of that determination.

Also, since the MMPA limits the comment period for incidental

harassment authorizations to a maximum of 30 days and a final decision

on the application to 45 days after the close of the public comment

period, NMFS expects that Federal, federally-funded, or federally-

permitted applicants will have completed their responsibilities under

the National Environmental Policy Act (NEPA) and its implementing

regulations (40 CFR parts 1500-1508) prior to submitting an application

for an incidental harassment authorization.

Monitoring Plans

Consistent with the requirements of the MMPA, NMFS proposes to

require applicants to monitor the impact of their activity on marine

mammals and to submit monitoring plans for all applications for

incidental harassment authorizations under part 228. Without

appropriate monitoring, NMFS would be unable to ensure that

authorizations over time have only a negligible impact on species or

stocks of marine mammals and no unmitigable adverse impact on the

availability of species or stocks for taking for subsistence uses. NMFS

recognizes however, that in some cases the level of monitoring

necessary to ensure that the requirements of this section of the MMPA

are met may be low. In such cases, NMFS would strive to seek a balance

between the need to ensure, through monitoring, that the activity is

not having more than a negligible impact on the marine mammals or on

the health and stability of the ecosystem of which marine mammals are a

part and the logistical burden of the monitoring requirements on the

applicant.

Under these proposed regulations, when applying for an incidental

harassment authorization under 50 CFR 228.7, the applicant would be

required to include a site-specific plan to monitor the effects on

stocks of marine mammals that are expected to be present while

conducting activities. This plan, whose adequacy must be approved by

NMFS, at a minimum, would have to include information regarding: (1)

The survey techniques, and/or other methods to be used, to determine

whether the behavior (including, if appropriate, vocalizations) of

marine mammals near the activity site is being affected, and (2) how

the number of marine mammals affected (i.e., taken by harassment) by

the planned activity would be determined, including the expected

precision of that estimated number. If requested, NMFS would provide

guidelines to applicants for development of site-specific monitoring

plans.

Requirements for Activities Impacting Arctic Subsistence Needs

Section 101(a)(5)(D)(ii)(III) of the MMPA requires

independent peer review of proposed monitoring plans or other

research proposals where the proposed activity may affect the

availability of a species or stock for taking for subsistence uses *

* *.

To minimize potential conflicts among user groups over whether a

proposed Monitoring Plan (Plan) is adequate for determining the effects

of the proposed activity on stocks of marine mammals, the applicant

would be required to submit a draft Plan either along with an

incidental harassment application or no later than 120 days prior to

the date an incidental harassment authorization is expected to be

issued. Upon receipt of the draft Plan, NMFS would establish an

independent peer-review panel to critique the Plan and, if appropriate,

to provide NMFS and the applicant with suggestions for improvement of

monitoring. It is anticipated that the applicant would consider any

comments and recommendations made by the panel or NMFS prior to

submitting a final proposed Plan to NMFS. This final plan should be

submitted a minimum of 30 days prior to the date an incidental

harassment authorization is expected to be issued.

As an example of a peer-reviewed process, applicants involved in

oil and gas exploration activities in the Beaufort Sea cooperate with

NMFS and North Slope residents and usually a workshop is scheduled to

peer-review their Plan. That procedure is likely to continue under this

rule. For this activity, the workshop normally includes 6-10 experts in

the fields of population ecology, survey design, acoustics, and marine

mammal behavior. Panelists are selected by NMFS, in consultation with

the Marine Mammal Commission (MMC), the Alaskan Eskimo Whaling

Commission (AEWC) and/or other Alaskan native organizations as

appropriate, and the applicant. Selected panelists are experts who are

not currently employed or contracted by either the affected Alaskan

native organization or the applicant. Normally, the workshop is chaired

by either a NMFS or MMC employee and minutes from the workshop are

prepared within 2 weeks by a rapporteur, assigned to assist the Chair,

and made available to the general public upon request.

If a plan proposes to continue, without significant modification,

the approved plan from the previous year, the Assistant Administrator

for Fisheries, NOAA (AA) may waive the requirement for peer-review.

This determination would be announced in either the proposed

authorization notice for an incidental harassment authorization or the

notice of issuance [[Page 28382]] of an annual Letter of Authorization

(LOA) under 50 CFR 228.6 and would be made available to the general

public.

Also, when applying for either an incidental harassment

authorization or an LOA, for an activity that has the potential to

affect the availability of a species or stock of marine mammal for

taking by subsistence uses, the applicant would also be required to

submit a plan of cooperation that identifies what measures have been

taken and would be taken to minimize the adverse effects on the

availability of marine mammals for subsistence users. This cooperation

plan would have to include: (1) A statement that the applicant has

notified and met with the affected subsistence communities to discuss

proposed activities and to resolve potential conflicts regarding

siting, timing and methods of operation; (2) a description of what

measures the applicant has taken and would take to ensure that

activities would not interfere with subsistence hunting; and (3) a

statement that the applicant would continue to meet with the affected

communities up to and during the activities to resolve conflicts and

notify the native communities of any changes in plans or operation.

Reporting

Consistent with the MMPA, NMFS proposes to require the holder of an

incidental harassment authorization to submit a report to the AA within

90 days of completion of any activities or 120 days prior to expiration

of the incidental harassment authorization, whichever is earlier. This

report would include information on the dates and types of activities,

dates and locations of any monitoring activities, and results of the

monitoring activities (e.g., estimate of actual number of animals taken

by species by take-type and a description of any observed changes in

behavior attributable to the exploratory activities).

Monitoring reports would be reviewed by the AA and if determined to

be incomplete or inaccurate, would be returned to the holder of the

authorization with an explanation of why the report is being returned.

If the authorization holder disagrees with the findings of the AA, the

holder would have an opportunity to request an independent peer review

of the report. A failure to submit a complete report may result in a

delay in processing subsequent authorization requests.

Other Regulatory Amendments

In this rule, NMFS is also proposing to amend existing regulations

to streamline and clarify the process for issuing regulations and/or

LOAs. In addition, NMFS is proposing to require any Federal agencies

that apply for authorization under this part to provide to the AA, as

part of the application process, any documentation such agency has

prepared under NEPA. Any delay in submission of appropriate NEPA

documentation could cause a delay in small take authorization under

these regulations. Private entities either funded or permitted by

Federal agencies for the applied activity would need to submit NEPA

documentation prepared by the funding agency with their small take

application. Private organizations not funded by Federal agencies would

need to provide sufficient information in their application for NMFS to

perform an appropriate NEPA analysis. Applicants would be expected to

give consideration to, and fully discuss, alternatives to their

activity that would involve a lesser impact on marine mammals or their

habitat, including seasonal or diel alternatives. Agencies could

formally provide a NEPA document as part of their application at the

following junctures: (1) At any time subsequent to publication and

release of a final environmental impact statement or analysis, provided

the document reflected the situation as described in the small take

application and had undergone public review and comment; or (2) upon

notification in the Federal Register that the document is available for

public review.

Agencies requesting NMFS to be a ``cooperating agency'' as defined

in Council on Environmental Quality regulations (40 CFR 1501.6) would

have to notify the AA in writing a minimum of 18 months prior to

expected initiation of the proposed activity in order for NMFS to

assess program commitments and research requirements (if any), for

cooperating in the joint completion of the NEPA document. Although NMFS

would make every attempt to cooperate with other agencies, it cannot

guarantee its ability to cooperate with agencies not meeting this

criterion.

National Environmental Policy Act

The general regulations in subpart A would implement section

101(a)(5)(D) of the MMPA, as added by the 1994 Amendments, by providing

a mechanism to authorize the incidental, but not intentional, taking by

harassment of small numbers of marine mammals by U.S. citizens engaged

in a specified activity in a specified geographic region. Also included

are proposed amendments to the existing subpart A. The AA has

determined, based upon an EA prepared for this action under NEPA, that

implementation of these general regulations would not have a

significant impact on the human environment. As a result of this

determination, an environmental impact statement is not required. A

copy of the EA is available upon request (see ADDRESSES).

In addition, while each proposed incidental harassment

authorization will be reviewed independently to determine its impact on

the human environment, NMFS believes that, because the finding required

for incidental harassment authorizations is that the taking (by

harassment) have a negligible impact on marine mammals and their

habitat, the majority of the authorizations should be ``categorically

excluded'' (as defined in 40 CFR 1508.4) from the preparation of either

environmental impact statements or environmental assessments under NEPA

and section 6.02.c.3(i) of NOAA Administrative Order 216-6 for

Environmental Review Procedures (published August 6, 1991).

Classification

This action has been determined to be not significant for purposes

of E.O. 12866.

The Assistant General Counsel for Legislation and Regulation of the

Department of Commerce certified to the Small Business Administration

that this proposed rule, if adopted, would not have a significant

economic impact on a substantial number of small entities since it

would simply establish an expedited process for the review and issuance

of authorizations for the incidental taking of small numbers of marine

mammals by harassment while conducting activities (other than

commercial fishing) in and near marine waters. Without these

authorizations, the taking of marine mammals, even by harassment, is

prohibited.

This proposed rule does not contain policies with federalism

implications sufficient to warrant preparation of a federalism

assessment under E.O. 12612.

This proposed rule contains collection-of-information requirements

subject to the provisions of the Paperwork Reduction Act. Although this

collection has been approved previously by the Office of Management and

Budget (OMB) under OMB control number 0648-0151, because of new

collection requirements for activities taking place in Arctic waters,

this rule is being resubmitted to OMB for review and approval. The

average reporting burden for this collection is estimated to be

approximately 252 hours per activity (range 96-563 hours depending upon

complexity), including the time for [[Page 28383]] gathering and

maintaining the data needed, and completing and reviewing the

collection of information including annual reports.

List of Subjects in 50 CFR Part 228

Marine mammals, Reporting and recordkeeping requirements.

Dated: May 23, 1995.

Richard H. Schaefer,

Acting Assistant Administrator for Fisheries, National Marine Fisheries

Service.

For reasons set out in the preamble, 50 CFR part 228 is proposed to

be amended as follows:

PART 228--REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS

INCIDENTAL TO SPECIFIED ACTIVITIES

1. The authority citation for part 228 continues to read as

follows:

Authority: 16 U.S.C. 1361 et seq.

2. Subpart A is revised to read as follows:

Subpart A--General

Sec.

228.1 Purpose.

228.2 Scope.

228.3 Definitions.

228.4 Submission of requests.

228.5 Specific regulations.

228.6 Letter of authorization.

228.7 Incidental harassment authorization.

228.8 Requirements for monitoring and reporting under incidental

harassment authorizations.

Subpart A--General

Sec. 228.1 Purpose.

The regulations in this part implement section 101(a)(5)(A) through

(D) of the Marine Mammal Protection Act of 1972, as amended (16 U.S.C.

1371(a)(5)), which provides a mechanism for allowing, upon request, the

incidental, but not intentional, taking of small numbers of marine

mammals by U.S. citizens who engage in a specified activity (other than

commercial fishing) within a specified geographic region.

Sec. 228.2 Scope.

The taking of small numbers of marine mammals under section

101(a)(5) of the Marine Mammal Protection Act may be allowed only if

the National Marine Fisheries Service:

(a) Finds, based on the best scientific evidence available, that

the total taking by the specified activity during the specified time

period will have a negligible impact on species or stock of marine

mammal(s) and will not have an unmitigable adverse impact on the

availability of those species or stocks of marine mammals intended for

subsistence uses;

(b) Prescribes either regulations under Sec. 228.5, or requirements

and conditions contained within an incidental harassment authorization

issued under Sec. 228.7, setting forth permissible methods of taking

and other means of effecting the least practicable adverse impact on

the species or stock of marine mammal and its habitat and on the

availability of the species or stock of marine mammal for subsistence

uses, paying particular attention to rookeries, mating grounds, and

areas of similar significance; and

(c) Prescribes either regulations or requirements and conditions

contained within an incidental harassment authorization, as

appropriate, pertaining to the monitoring and reporting of such taking.

The specific regulations governing certain specified activities are

contained in subsequent subparts to this part.

Sec. 228.3 Definitions.

In addition to definitions contained in the Act, and unless the

context otherwise requires, in this part 228:

Act means the Marine Mammal Protection Act of 1972, as amended, 16

U.S.C. 1361 et seq.

Assistant Administrator means the Assistant Administrator for

Fisheries, NOAA, National Marine Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910-3226.

Citizens of the United States and U.S. citizens mean individual

U.S. citizens or any corporation or similar entity if it is organized

under the laws of the United States or any governmental unit defined in

16 U.S.C. 1362(13). U.S. Federal, state and local government agencies

shall also constitute citizens of the United States for purposes of

this part.

Harassment means any act of pursuit, torment, or annoyance that:

(1) Has the potential to injure a marine mammal or marine mammal

stock in the wild; or

(2) Has the potential to disturb a marine mammal or marine mammal

stock in the wild by causing disruption of behavioral patterns,

including, but not limited to, migration, breathing, nursing, breeding,

feeding, or sheltering.

Incidental harassment, incidental taking and incidental, but not

intentional, taking all mean an accidental taking. This does not mean

that the taking is unexpected, but rather it includes those takings

which are infrequent, unavoidable or accidental. (A complete definition

of take is contained in Sec. 216.3 of this chapter).

Negligible impact is an impact resulting from the specified

activity that cannot be reasonably expected to, and is not reasonably

likely to, adversely affect the species or stock through effects on

annual rates of recruitment or survival.

Small numbers means a portion of a marine mammal species or stock

whose taking would have a negligible impact on that species or stock.

Specified activity means any activity, other than commercial

fishing, that takes place in a specified geographical region and

potentially involves the taking of small numbers of marine mammals.

Specified geographical region means an area within which a

specified activity is conducted and that has certain biogeographic

characteristics.

Unmitigable adverse impact means an impact resulting from the

specified activity:

(1) That is likely to reduce the availability of the species to a

level insufficient for a harvest to meet subsistence needs by:

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

(ii) Directly displacing subsistence users; or

(iii) Placing physical barriers between the marine mammals and the

subsistence hunters; and

(2) That cannot be sufficiently mitigated by other measures to

increase the availability of marine mammals to allow subsistence needs

to be met.

Sec. 228.4 Submission of requests.

(a) In order for the National Marine Fisheries Service to consider

authorizing the taking by U.S. citizens of small numbers of marine

mammals incidental to a specified activity (other than commercial

fishing), or to make a finding that an incidental take is unlikely to

occur, a written request must be submitted to the Assistant

Administrator. All requests must include the following information for

their activity:

(1) A detailed description of the specific activity or class of

activities that can be expected to result in incidental taking of

marine mammals;

(2) The specific date(s) and duration of such activity and the

specific geographical region where it will occur;

(3) The species and numbers of marine mammals likely to be found

within the activity area and those marine mammals that may be taken by

the activity by age, sex, and reproductive condition;

(4) A description of the status, distribution, and seasonal

distribution (when applicable) of the affected species or stocks of

marine mammals likely to be affected by such

activities; [[Page 28384]]

(5) The type of incidental taking authorization that is being

requested (i.e., takes by harassment only; takes by harassment, injury

and/or death), the method of incidental taking (e.g., disturbance by

anthropogenic noise such as construction, seismic activities, or ship

traffic; serious injury or death resulting from explosives or

collisions between marine mammals and ships), and the number of times

such taking is likely to occur;

(6) The anticipated impact of the activity upon the species or

stock of marine mammal;

(7) The anticipated impact of the activity on the availability of

the species or stocks of marine mammals for subsistence uses;

(8) The anticipated impact of the activity upon the habitat and

food sources of the marine mammal populations, and the likelihood of

restoration of the affected habitat or food sources;

(9) The anticipated impact of the loss or modification of the

habitat or food sources on the marine mammal populations involved;

(10) The availability and feasibility (economic and technological)

of equipment, methods, and manner of conducting such activity or other

means of effecting the least practicable adverse impact upon the

affected species or stocks, their habitat, and on their availability

for subsistence uses, paying particular attention to rookeries, mating

grounds, and areas of similar significance.

(11) Where the proposed activity would take place in or near a

traditional subsistence hunting area and/or may affect the availability

of a species or stock of marine mammal for subsistence uses, the

applicant must submit a plan of cooperation that identifies what

measures have been taken and will be taken to minimize any adverse

effects on the availability of marine mammals for subsistence uses. A

plan must include the following:

(i) A statement that the applicant has notified and met with the

affected subsistence communities to discuss proposed activities and to

resolve potential conflicts regarding any aspects of the operation;

(ii) A description of what measures the applicant has taken and

will take to ensure that proposed activities will not interfere with

subsistence whaling or sealing; and

(iii) What plans the applicant has to continue to meet with the

affected communities, both prior to and while conducting the activity,

to resolve conflicts and to notify the communities of any changes in

the operation.

(12) The suggested means of accomplishing the necessary monitoring

and reporting that will result in increased knowledge of the species,

the level of taking or impacts on populations of marine mammals that

are expected to be present while conducting activities and suggested

means of minimizing burdens by coordinating such reporting requirements

with other schemes already applicable to persons conducting such

activity. Monitoring plans should include a description of the survey

techniques that would be used to determine the movement and activity of

marine mammals near the activity site(s) including migration and other

habitat uses, such as feeding. Guidelines for developing a site-

specific monitoring plan may be obtained by writing to the Assistant

Administrator.

(13) Suggested means of learning of, encouraging, and coordinating

research opportunities, plans, and activities relating to reducing such

incidental taking and evaluating its effects.

(b)(1) The Assistant Administrator shall determine the adequacy and

completeness of a request, and, if determined to be adequate, complete,

and in full compliance with the Act and other existing laws and

regulations (in particular, the National Environmental Policy Act and

the Endangered Species Act), will egin the public review process by

publishing in the Federal Register either:

(i) A proposed incidental harassment authorization; or

(ii) A notice of receipt of a request for the promulgation or

repromulgation of regulations governing the incidental taking.

(2) Through notice in the Federal Register, newspapers of general

circulation, and appropriate electronic media in the coastal areas that

may be affected by such activity, NMFS will invite information,

suggestions, and comments for a period not to exceed 30 days from the

date of publication in the Federal Register. All information and

suggestions will be considered by the National Marine Fisheries Service

in developing, if appropriate, the most effective regulations governing

the issuance of letters of authorization or conditions governing the

issuance of an incidental harassment authorization.

(3) Applications that are determined to be incomplete, or

inappropriate for the type of taking requested, will be returned to the

applicant with an explanation of why the application is being returned.

(c) The Assistant Administrator shall evaluate each request to

determine, based upon the best available scientific evidence, whether

the taking by the specified activity within the specified geographic

region will have a negligible impact on the species or stock and, where

appropriate, will not have an unmitigable adverse impact on the

availability of such species or stock for subsistence uses. If the

Assistant Administrator finds that the mitigating measures would render

the impact of the specified activity negligible when it would not

otherwise satisfy that requirement, the Assistant Administrator may

make a finding of negligible impact subject to such mitigating measures

being successfully implemented. Any preliminary findings of

``negligible impact'' and ``no unmitigable adverse impact'' shall be

proposed for public comment along with either the proposed incidental

harassment authorization or the proposed regulations for the specific

activity.

(d) If, subsequent to the public review period, the Assistant

Administrator finds that the taking by the specified activity would

have more than a negligible impact on the species or stock of marine

mammal or would have an unmitigable adverse impact on the availability

of such species or stock for subsistence uses, the Assistant

Administrator shall publish in the Federal Register the negative

finding along with the basis for denying the request.

Sec. 228.5 Specific regulations.

(a) For all petitions for regulations under this paragraph,

applicants must provide the information requested in Sec. 228.4(a) on

their activity as a whole, which includes, but is not necessarily

limited to, an assessment of total impacts by all persons conducting

the activity.

(b) For allowed activities that may result in incidental takings of

small numbers of marine mammals by harassment, serious injury, death or

combination thereof, specific regulations shall be established for each

allowed activity which set forth:

(1) Permissible methods of taking;

(2) Means of effecting the least practicable adverse impact on the

species and its habitat and on the availability of the species for

subsistence uses; and

(3) Requirements for monitoring and reporting, including

requirements for the independent peer-review of proposed monitoring

plans where the proposed activity may affect the availability of a

species or stock for taking for subsistence uses.

(c) Regulations will be established based on the best available

information. As new information is developed, [[Page 28385]] through

monitoring, reporting, or research, the regulations may be modified, in

whole or in part, after notice and opportunity for public review.

Sec. 228.6 Letter of authorization.

(a) A Letter of Authorization, which may be issued only to U.S.

citizens, is required to conduct activities pursuant to any regulations

established under Sec. 228.5. Requests for letters of authorization

shall be submitted to the Assistant Administrator. The information to

be submitted in a request will be specified in the regulations

authorizing the incidental take or may be obtained by writing to the

Assistant Administrator.

(b) Issuance of a Letter of Authorization will be based on a

determination that the level of taking will be consistent with the

findings made for the total taking allowable under the specific

regulations.

(c) Letters of Authorization will specify the period of validity

and any additional terms and conditions appropriate for the specific

request.

(d) Notice of issuance of all Letters of Authorization will be

published in the Federal Register within 30 days of issuance.

(e) Letters of Authorization shall be withdrawn or suspended,

either on an individual or class basis, as appropriate, if, after

notice and opportunity for public comment, the Assistant Administrator

determines that:

(1) The regulations prescribed are not being substantially complied

with; or

(2) The taking allowed is having, or may have, more than a

negligible impact on the species or stock, or where relevant, an

unmitigable adverse impact on the availability of the species or stock

for subsistence uses.

(f) The requirement for notice and opportunity for public review in

Sec. 228.6(e) shall not apply if the Assistant Administrator determines

that an emergency exists that poses a significant risk to the wellbeing

of the species or stocks of marine mammals concerned.

(g) A violation of any of the terms and conditions of a Letter of

Authorization or of the specific regulations shall subject the Holder

and/or any individual who is operating under the authority of the

Holder's Letter of Authorization to penalties provided in the Act.

Sec. 228.7 Incidental harassment authorization.

(a) Except for activities that have the potential to result in

serious injuries (that may be authorized under Sec. 228.5), following a

30-day public review period, incidental harassment authorizations may

be issued to allowed activities that may result in only the incidental

harassment of a small number of marine mammals. Each such incidental

harassment authorization shall set forth:

(1) Permissible methods of taking by harassment;

(2) Means of effecting the least practicable adverse impact on the

species, its habitat, and on the availability of the species for

subsistence uses; and

(3) Requirements for monitoring and reporting, including

requirements for the independent peer-review of proposed monitoring

plans where the proposed activity may affect the availability of a

species or stock for taking for subsistence uses.

(b) Issuance of an incidental harassment authorization will be

based on a determination that the number of marine mammals taken by

harassment will be small, will have a negligible impact on the species

or stock of marine mammal(s), and will not have an unmitigable adverse

impact on the availability of species or stocks for taking for

subsistence uses.

(c) An incidental harassment authorization will be either issued or

denied within 45 days after the close of the public review period.

(d) Notice of issuance or denial of an incidental harassment

authorization will be published in the Federal Register within 30 days

of issuance of a determination.

(e) Incidental harassment authorizations will be valid for 1 year.

(f) An incidental harassment authorization shall be modified,

withdrawn, or suspended, if, after notice and opportunity for public

comment, the Assistant Administrator determines that:

(1) The conditions and requirements prescribed in the authorization

are not being substantially complied with, or

(2) The authorized taking, either individually or in combination

with other authorizations, is having, or may have, more than a

negligible impact on the species or stock, or, where relevant, an

unmitigable adverse impact on the availability of the species or stock

for subsistence uses.

(g) The requirement for notice and opportunity for public review in

Sec. 228.7(f) shall not apply if the Assistant Administrator determines

that an emergency exists that poses a significant risk to the well

being of the species or stocks of marine mammals concerned.

(h) A violation of any of the terms and conditions of an incidental

harassment authorization shall subject the Holder and/or any individual

who is operating under the authority of the Holder's Incidental

Harassment Authorization to penalties provided in the Act.

Sec. 228.8 Requirements for monitoring and reporting under incidental

harassment authorizations.

(a) Holders of an incidental harassment authorization and their

employees, agents, and designees must cooperate with the National

Marine Fisheries Service and other designated Federal, state, or local

agencies to monitor the impacts of their activity on marine mammals.

Unless stated otherwise within an incidental harassment authorization,

the Holder of an incidental harassment authorization must notify the

appropriate Regional Director, National Marine Fisheries Service, of

any activities that may involve a take by incidental harassment at

least 14 calendar days prior to commencement of the activity.

(b) Holders of incidental harassment authorizations may be required

by their authorization to designate at least one qualified biological

observer or another appropriately experienced individual to observe and

record the effects of activities on marine mammals. The number of

observers required for monitoring the impact of the activity on marine

mammals will be specified in the incidental harassment authorization.

If required, the observer(s) must be approved in advance by the

National Marine Fisheries Service.

(c) The monitoring program must, if appropriate, document the

effects (including acoustical) on marine mammals and document or

estimate the actual level of take. The requirements for monitoring

plans, as specified in the incidental harassment authorization, may

vary depending on the activity, the location, and the time.

(d) Where the proposed activity may affect the availability of a

species or stock of marine mammal for taking for subsistence purposes,

proposed monitoring plans or other research proposals must be

independently peer reviewed prior to final approval of the applicant's

submission of a request for an incidental harassment authorization

under this subpart. In order to complete the peer-review process within

the time frames mandated by the Act for an incidental harassment

authorization, a proposed monitoring plan submitted under this

paragraph must be submitted to the Assistant Administrator no later

than the date of submission of the application for an incidental

harassment authorization. Upon receipt of a complete monitoring plan,

and at its [[Page 28386]] discretion, the National Marine Fisheries

Service will either submit the plan to members of a peer-review panel

for review or within 60 days of receipt of the proposed monitoring

plan, schedule a workshop to review the plan. The applicant must submit

a final monitoring plan to the Assistant Administrator prior to the

issuance of an incidental harassment authorization.

(e) At its discretion, the National Marine Fisheries Service may

place an observer on board vessels, platforms, aircraft, etc., to

monitor the impact of activities on marine mammals.

(f) Reporting. (1) The holder of an incidental harassment

authorization must submit a report to the Assistant Administrator

within either 90 days of completion of any activities or 120 days prior

to expiration of the incidental harassment authorization, whichever is

earlier. This report must include the following information:

(i) Dates and type(s) of activity;

(ii) Dates and location(s) of any activities related to monitoring

the effects on marine mammals; and

(iii) Results of the monitoring activities, including an estimate

of the actual level and type of take, species name and numbers of each

species observed, direction of movement of species, and any observed

changes or modifications in behavior.

(2) Monitoring reports will be reviewed by the Assistant

Administrator and, if determined to be incomplete or inaccurate, will

be returned to the holder of the authorization with an explanation of

why the report is being returned. If the authorization holder disagrees

with the findings of the Assistant Administrator, the holder may

request an independent peer review of the report. Failure to submit a

complete and accurate report may result in a delay in processing future

authorization requests.

(g) Results of any behavioral, feeding, or population studies, that

are conducted supplemental to the monitoring program, should be made

available to the National Marine Fisheries Service before applying for

an incidental harassment authorization for the following year.

[FR Doc. 95-13265 Filed 5-30-95; 8:45 am]

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