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CRelevant U.S. Legislation and Regulations for Marine Mammals MARINE MAMMAL PROTECTION ACT (16 U.S.C. (SELECTED PORTIONS) Sec. 1362. Definitions For the purposes of this chapter (1) The term "depletion"' or "depleted" means any case in which- (A) the Secretary, after consultation with the Marine Mammal Commis- sion and the Committee of Scientific Advisors on Marine Mammals established under subchapter III of this chapter, determines that a species or population stock is below its optimum sustainable population; (B) a State, to which authority for the conservation and management of a species or population stock is transferred under section 1379 of this title, determines that such species or stock is below its optimum sustain- able population; or (C) a species or population stock is listed as an endangered species or a threatened species under the Endangered Species Act of 1973 [16 U.S.C. 1531etseq.~. (2) The terms "conservation"' and "management" mean the collection and application of biological information for the purposes of increasing and main- taining the number of animals within species and populations of marine mammals at their optimum sustainable population. Such terms include the entire scope of activities that constitute a modern scientific resource pro- gram, including, but not limited to, research, census, law enforcement, and {www4.1aw.cornell.edu/uscode/1 6/ch3 1 .html, accessed 9/6/99. 107

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108 APPENDIX C habitat acquisition and improvement. Also included within these terms, when and where appropriate, is the periodic or total protection of species or popu- lations as well as regulated taking. (6) The term "marine mammal" means any mammal which- (A) is morphologically adapted to the marine environment including sea otters and members of the orders Sirenia, Pinnipedia, and Cetacea, or (B) primarily inhabits the marine environment (such as the polar bear); and, for the purposes of this chapter, includes any part of any such marine mammal, including its raw, dressed, or dyed fur or skin. (7) The term "marine mammal product" means any item of merchandise which consists, or is composed in whole or in part, of any marine mammal. (8) The term "moratorium" means a complete cessation of the taking of marine mammals and a complete ban on the importation into the United States of marine mammals and marine mammal products, except as provided in this chapter. (9) The term "optimum sustainable population" means, with respect to any population stock, the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element. (10) The term "person" includes (A) any private person or entity, and (B) any officer, employee, agent, department, or instrumentality of the Federal Gov- ernment, of any State or political subdivision thereof, or of any foreign government. (11) The term "population stock" or "stock" means a group of marine mam- mals of the same species or smaller taxa in a common spatial arrangement, that interbreed when mature. (A) Except as provided in subparagraph (B), the term "Secretary" means (i) the Secretary of the department in which the National Oceanic and Atmospheric Administration is operating, as to all responsibil- ity, authority, funding, and duties under this chapter with respect to members of the order Cetacea and members, other than walruses, of the order Pinnipedia, and (ii) the Secretary of the Interior as to all responsibility, authority, funding, and duties under this chapter with respect to all other marine mammals covered by this chapter. (B) in section 1387 of this title and subchapter V of this chapter the term "Secretary" means the Secretary of Commerce. (13) The term "take" means to harass, hunt, capture or kill, or attempt to harass, hunt, capture, or kill any marine mammal. (14) The term "United States" includes the several States, the District of

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APPENDIX C 109 Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the United States, American Samoa, Guam, and Northern Mariana Islands. (15) The term "waters under the jurisdiction of the United States" means (A) the territorial sea of the United States, and (B) the waters included within a zone, contiguous to the territorial sea of the United States, of which the inner boundary is a line coterminous with the seaward boundary of each coastal State, and the outer boundary is a line drawn in such a manner that each point on it is 200 nautical miles from the baseline from which the territorial sea is measured. (16) The term "fishery" means (18) (A) one or more stocks of fish which can be treated as a unit for purposes of conservation and management and which are identified on the basis of geographical, scientific, technical, recreational, and economic char- acteristics; and (B) any fishing for such stocks. (A) The term "harassment" means any act of pursuit, torment, or annoy- ance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mam- mal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breed- ing, feeding, or sheltering. (B) The term "Level A harassment" means harassment described in subparagraph (A)(i). (C) The term "Level B harassment" means harassment described in subparagraph (A)(ii). (19) The term "strategic stock" means a marine mammal stock- (A) for which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declin- ing and is likely to be listed as a threatened species under the Endan- gered Species Act of 1973 [16 U.S.C. 1531 et seq.] within the foresee- able future; or . (C) which is listed as a threatened species or endangered species under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), or is designated as depleted under this chapter. (20) The term "potential biological removal level" means the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population. The potential biological removal level is the product of the following factors:

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110 APPENDIX C (A) The minimum population estimate of the stock. (B) One-half the maximum theoretical or estimated net productivity rate of the stock at a small population size. (C) A recovery factor of between 0.1 and 1.0. Sec. 1371. Moratorium on taking and importing marine mammals and ma- rine mammal products (a) Imposition; exceptions. There shall be a moratorium on the taking and importation of marine mammals and marine mammal products, commencing on the effective date of this chapter, during which time no permit may be issued for the taking of any marine mammal and no marine mammal or marine mammal product may be imported into the United States except in the following cases: (1) Consistent with the provisions of section 1374 of this title, permits may be issued by the Secretary for taking, and importation for purposes of scientific research, public display, photography for educational or commercial purposes, or enhancing the survival or recovery of a species or stock, or for importation of polar bear parts (other than internal organs) taken in sport hunts in Canada. Such permits, except permits issued under section 1374(c)~5) of this title, may be issued if the taking or importation proposed to be made is first reviewed by the Marine Mam- mal Commission and the Committee of Scientific Advisors on Marine Mammals established under subchapter III of this chapter. The Commis- sion and Committee shall recommend any proposed taking or importa- tion, other than importation under section 1374(c)~5) of this title, which is consistent with the purposes and policies of section 1361 of this title. If the Secretary issues such a permit for importation, the Secretary shall issue to the importer concerned a certificate to that effect in such form as the Secretary of the Treasury prescribes, and such importation may be made upon presentation of the certificate to the customs officer concerned. (3) (A) The Secretary, on the basis of the best scientific evidence avail- able and in consultation with the Marine Mammal Commission, is authorized and directed, from time to time, having due regard to the distribution, abundance, breeding habits, and times and lines of migratory movements of such marine mammals, to determine when, to what extent, if at all, and by what means, it is compatible with this chapter to waive the requirements of this section so as to allow taking, or importing of any marine mammal, or any marine mam- mal product, and to adopt suitable regulations, issue permits, and make determinations in accordance with sections 1372,1373,1374, and 1381 of this title permitting and governing such taking and

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APPENDIX C (4) (5) 111 importing, in accordance with such determinations: Provided, how- ever, that the Secretary, in making such determinations must be assured that the taking of such marine mammal is in accord with sound principles of resource protection and conservation as pro- vided in the purposes and policies of this chapter: Provided, further, however, that no marine mammal or no marine mammal product may be imported into the United States unless the Secretary certi- fies that the program for taking marine mammals in the country of origin is consistent with the provisions and policies of this chapter. Products of nations not so certified may not be imported into the United States for any purpose, including processing for exportation. (B) Except for scientific research purposes, photography for educa- tional or commercial purposes, or enhancing the survival or recovery of a species or stock as provided for in paragraph (1) of this sub- section, or as provided for under paragraph (5) of this subsection, during the moratorium no permit may be issued for the taking of any marine mammal which has been designated by the Secretary as depleted, and no importation may be made of any such mammal. (A) Except as provided in subparagraphs (B) and (C), the provi- sions of this chapter shall not apply to the use of measures- (i) by the owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal from damaging the gear or catch; (ii) by the owner of other private property, or an agent, bailee, or employee of such owner, to deter a marine mammal from damaging private property; (iii) by any person, to deter a marine mammal from endanger- ing personal safety; or (iv) by a government employee, to deter a marine mammal from damaging public property, so long as such measures do not result in the death or serious injury of a marine mammal. (A) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specified geographical region, the Secretary shall allow, during periods of not more than five consecutive years each, the incidental, but not intentional, taking by citizens while engaging in that activity within that region of small numbers of marine mammals of a species or population stock if the Secretary, after notice (in the Federal Register and in newspapers of general circulation, and through appropriate electronic media, in the coastal areas that may be affected by such activity) and opportunity for public comment-

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112 APPENDIX C (i) finds that the total of such taking during each five-year (or less) period concerned will have a negligible impact on such species or stock and will not have an unmitigable adverse impact on the availability of such species or stock for taking for subsistence uses pursuant to subsection (b) of this section or section 1379(f) of this title or, in the case of a cooperative agreement under both this chapter and the Whaling Convention Act of 1949 (16 U.S.C. 916 et seq.), pursuant to section 1382 of this title; and (ii) prescribes regulations setting forth- (I) permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses; and (II) requirements pertaining to the monitoring and report- ing of such taking. (B) The Secretary shall withdraw, or suspend for a time certain (either on an individual or class basis, as appropriate) the permis- sion to take marine mammals under subparagraph (A) pursuant to a specified activity within a specified geographical region if the Sec- retary finds, after notice and opportunity for public comment (as required under subparagraph (A) unless subparagraph (C)(I) ap- plies), that- (i) the regulations prescribed under subparagraph (A) regard- ing methods of taking, monitoring, or reporting are not being substantially complied with by a person engaging in such activ- ity; or (ii) the taking allowed under subparagraph (A) pursuant to one . - 1 - or more activities w~tn~n one or more regions Is nav~ng, or may have, more than a negligible impact on the species or stock concerned. (D) (i) Upon request therefor by citizens of the United States who engage in a specified activity (other than commercial fishing) within a specific geographic region, the Secretary shall authorize, for periods of not more than 1 year, subject to such conditions as the Secretary may specify, the incidental, but not intentional, taking by harassment of small numbers of marine mammals of a species or population stock by such citizens while engaging in that activity within that region if the Secre- tary finds that such harassment during each period concerned-

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APPENDIX C 113 (I) will have a negligible impact on such species or stock, and (II) will not have an unmitigable adverse impact on the availability of such species or stock for taking for sub- sistence uses pursuant to subsection (b) of this section, or section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title. (ii) The authorization for such activity shall prescribe, where applicable- (I) permissible methods of taking by harassment pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for subsistence uses pursu- ant to subsection (b) of this section or section 1379(f) of this title or pursuant to a cooperative agreement under sec- tion 1388 of this title, (II) the measures that the Secretary determines are neces- sary to ensure no unmitigable adverse impact on the avail- ability of the species or stock for taking for subsistence uses pursuant to subsection (b) of this section or section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title, and (III) requirements pertaining to the monitoring and report- ing of such taking by harassment, including requirements for the independent peer review of proposed monitoring plans or other research proposals where the proposed ac- tivity may affect the availability of a species or stock for taking for subsistence uses pursuant to subsection (b) of this section or section 1379(f) of this title or pursuant to a cooperative agreement under section 1388 of this title. (iii) The Secretary shall publish a proposed authorization not later than 45 days after receiving an application under this sub- paragraph and request public comment through notice in the Federal Register, newspapers of general circulation, and appro- priate electronic media and to all locally affected communities for a period of 30 days after publication. Not later than 45 days after the close of the public comment period, if the Secretary makes the findings set forth in clause (i), the Secretary shall issue an authorization with appropriate conditions to meet the requirements of clause (ii). (iv) The Secretary shall modify, suspend, or revoke an authori-

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114 Sec. 1374. Permits APPENDIX C zation if the Secretary finds that the provisions of clauses (i) or (ii) are not being met. (v) A person conducting an activity for which an authorization has been granted under this subparagraph shall not be subject to the penalties of this chapter for taking by harassment that occurs in compliance with such authorization. (a) Issuance The Secretary may issue permits which authorize the taking or importation of any marine mammal. Permits for the incidental taking of marine mammals in the course of commercial fishing operations may only be issued as specifically provided for in sections 1371(a)~5) or 1416 of this title, or subsection (h) of this section. (b) Requisite provisions Any permit issued under this section shall- (1) be consistent with any applicable regulation established by the Sec- retary under section 1373 of this title, and (2) specify- (A) the number and kind of animals which are authorized to be taken or imported, (B) the location and manner (which manner must be determined by the Secretary to be humane) in which they may be taken, or from which they may be imported, (C) the period during which the permit is valid, and (D) any other terms or conditions which the Secretary deems appro- priate. In any case in which an application for a permit cites as a reason for the proposed taking the overpopulation of a particular species or population stock, the Secretary shall first consider whether or not it would be more desirable to transplant a number of animals (but not to exceed the number requested for taking in the application) of that species or stock to a location not then inhabited by such species or stock but previously inhabited by such species or stock. (c) Importation for scientific research, public display, or enhancing survival or recovery of species or stock- (1) Any permit issued by the Secretary which authorizes the taking or importation of a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall specify, in addition to the conditions required by subsection (b) of this section, the methods of capture, supervision, care, and trans- portation which must be observed pursuant to such taking or importa-

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APPENDIX C (3) 115 lion. Any person authorized to take or import a marine mammal for purposes of scientific research, public display, or enhancing the survival or recovery of a species or stock shall furnish to the Secretary a report on all activities carried out by him pursuant to that authority. (2) (B) A permit under this paragraph shall grant to the person to which it is issued the right, without obtaining any additional permit or authorization under this chapter, to- (i) take, import, purchase, offer to purchase, possess, or trans- port the marine mammal that is the subject of the permit; and (ii) sell, export, or otherwise transfer possession of the marine mammal, or offer to sell, export, or otherwise transfer posses- sion of the marine mammal- (II) for the purpose of scientific research, to a person that meets the requirements of paragraph (3~; or (III) for the purpose of enhancing the survival or recovery of a species or stock, to a person that meets the require- ments of paragraph (4~. (C) A person to which a marine mammal is sold or exported or to which possession of a marine mammal is otherwise transferred un- der the authority of subparagraph (B) shall have the rights and responsibilities described in subparagraph (B) with respect to the marine mammal without obtaining any additional permit or authori- zation under this chapter. Such responsibilities shall be limited to- (ii) for the purpose of scientific research, the responsibility to meet the requirements of paragraph (3), and (iii) for the purpose of enhancing the survival or recovery of a species or stock, the responsibility to meet the requirements of paragraph (4~. (E) No marine mammal held pursuant to a permit issued under subparagraph (A), or by a person exercising rights under sub- paragraph (C), may be sold, purchased, exported, or transported unless the Secretary is notified of such action no later than 15 days before such action, and such action is for purposes of public dis- play, scientific research, or enhancing the survival or recovery of a species or stock. The Secretary may only require the notification to include the information required for the inventory established under paragraph (10~. (A) The Secretary may issue a permit under this paragraph for scientific research purposes to an applicant which submits with its permit application information indicating that the taking is required to further a bona fide scientific purpose. The Secretary may issue a

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116 APPENDIX C permit under this paragraph before the end of the public review and comment period required under subsection (d)~2) of this section if delaying issuance of the permit could result in injury to a species, stock, or individual, or in loss of unique research opportunities. (B) No permit issued for purposes of scientific research shall autho- rize the lethal taking of a marine mammal unless the applicant demonstrates that a nonlethal method of conducting the research is not feasible. The Secretary shall not issue a permit for research which involves the lethal taking of a marine mammal from a species or stock that is depleted, unless the Secretary determines that the results of such research will directly benefit that species or stock, or that such research fulfills a critically important research need. (C) Not later than 120 days after April 30, 1994, the Secretary shall issue a general authorization and implementing regulations allow- ing bona fide scientific research that may result only in taking by Level B harassment of a marine mammal. Such authorization shall apply to persons which submit, by 60 days before commencement of such research, a letter of intent via certified mail to the Secretary containing the following: (i) The species or stocks of marine mammals which may be harassed. (ii) The geographic location of the research. (iii) The period of time over which the research will be con- ducted. (iv) The purpose of the research, including a description of how the definition of bona fide research as established under this chapter would apply. (v) Methods to be used to conduct the research. Not later than 30 days after receipt of a letter of intent to conduct scientific research under the general authorization, the Secretary shall issue a letter to the applicant confirming that the general autho- rization applies, or, if the proposed research is likely to result in the taking (including Level A harassment) of a marine mam- mal, shall notify the applicant that subparagraph (A) applies. (d) Application procedures; notice; hearing; review- (1) The Secretary shall prescribe such procedures as are necessary to carry out this section, including the form and manner in which applica- tion for permits may be made. (2) The Secretary shall publish notice in the Federal Register of each application made for a permit under this section. Such notice shall invite the submission from interested parties, within thirty days after the date

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APPENDIX C 117 of the notice, of written data or views, with respect to the taking or importation proposed in such application. (3) The applicant for any permit under this section must demonstrate to the Secretary that the taking or importation of any marine mammal under such permit will be consistent with the purposes of this chapter and the applicable regulations established under section 1373 of this title. (4) If within thirty days after the date of publication of notice pursuant to paragraph (2) of this subsection with respect to any application for a permit any interested party or parties request a hearing in connection therewith, the Secretary may, within sixty days following such date of publication, afford to such party or parties an opportunity for such a hearing. (5) As soon as practicable (but not later than thirty days) after the close of the hearing or, if no hearing is held, after the last day on which data, or views, may be submitted pursuant to paragraph (2) of this subsection, the Secretary shall (A) issue a permit containing such terms and conditions as he deems appropriate, or (B) shall deny issuance of a permit. Notice of the decision of the Secretary to issue or to deny any permit under this paragraph must be published in the Federal Register within ten days after the date of issuance or denial. (6) Any applicant for a permit, or any party opposed to such permit, may obtain judicial review of the terms and conditions of any permit issued by the Secretary under this section or of his refusal to issue such a permit. Such review, which shall be pursuant to chapter 7 of title 5, may be initiated by filing a petition for review in the United States district court for the district wherein the applicant for a permit resides, or has his principal place of business, or in the United States District Court for the District of Columbia, within sixty days after the date on which such permit is issued or denied. (g) Fees The Secretary shall establish and charge a reasonable fee for permits issued under this section.

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130 APPENDIX C and request confirmation that the General Authorization for Level B Harassment for Scientific Research applies to the proposed research as described herein. I certify that the information in this letter of intent is complete, true, and correct to the best of my knowledge and belief, and I understand that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001, or penalties under the MMPA and implementing regulations. I acknowledge and accept that authority to conduct scientific research on marine mammals in the wild under the General Authorization is a limited conditional authority restricted to Level B harassment only, and that any other take of marine mammals, including the conduct of any activity that has the potential to injure marine mam- mals (i.e., Level A harassment), may subject me to penalties under the MMPA and implementing regulations. (c) Confirmation that the General Authorization applies or notification of permit requirement. (1) Not later than 30 days after receipt of a letter of intent as described in paragraph (b) of this section, the Chief, Permits Division, NMFS will issue a letter to the applicant either: (i) Confirming that the General Authorization applies to the pro- posed scientific research as described in the letter of intent; (ii) Notifying the applicant that all or part of the research described In the letter of intent is likely to result in a taking of a marine mammal in the wild involving other than Level B harassment and, as a result, cannot be conducted under the General Authorization, and that a scientific research permit is required to conduct all or part of the subject research; or (iii) Notifying the applicant that the letter of intent fails to provide sufficient information and providing a description of the deficien- cies, or notifying the applicant that the proposed research as described in the letter of intent is not bona fide research as defined in 216.3. (2) A copy of each letter of intent and letter confirming that the General Authorization applies or notifying the applicant that it does not apply will be forwarded to the Marine Mammal Commission. (3) Periodically, NMFS will publish a summary document in the FED- ERAL REGISTER notifying the public of letters of confirmation issued. (d) Terms and conditions. Persons issued letters of confirmation in accor- dance with paragraph (c) of this section are responsible for complying with the following terms and conditions: (1) Activities are limited to those conducted for the purposes, by the means, in the locations, and during the periods of time described in the letter of intent and acknowledged as authorized under the General i,

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APPENDIX C 131 Authorization in the confirmation letter sent pursuant to paragraph (c) of this section; (2) Annual reports of activities conducted under the General Authoriza- tion must be submitted to the Chief, Permits Division (address listed in paragraph (b) of this section) within 90 days of completion of the last field seasoners) during the calendar year or, if the research is not con- ducted during a defined field season, no later than 90 days after the anniversary date of the letter of confirmation issued under paragraph (c) of this section. Annual reports must include: (i) A summary of research activities conducted; (ii) Identification of the species and number of each species taken by Level B harassment; (iii) An evaluation of the progress made in meeting the objectives of the research as described in the letter of intent; and (iv) Any incidental scientific, educational, or commercial uses of photographs, videotape, and film obtained as a result of or inciden- tal to the research and if so, names of all photographers. (3) Authorization to conduct research under the General Authorization is for the periodic) of time identified in the letter of intent or for a period of 5 years from the date of the letter of confirmation issued under para- graph (c) of this section, whichever is less, unless extended by the Direc- tor or modified, suspended, or revoked in accordance with paragraph (e) of this section; (4) Activities conducted under the General Authorization may only be conducted under the on-site supervision of the principal investigator or co-investigators named in the letter of intent. All personnel involved in the conduct of activities under the General Authorization must perform a function directly supportive of and necessary for the research being conducted, or be one of a reasonable number of support personnel included for the purpose of training or as back-up personnel; (5) The principal investigator must notify the appropriate Regional Director, NMFS, in writing at least 2 weeks before initiation of on-site activities. The Regional Director shall consider this information in ef- forts to coordinate field research activities to minimize adverse impacts on marine mammals in the wild. The principal investigator must cooper- ate with coordination efforts by the Regional Director in this regard; (6) If research activities result in a taking which exceeds Level B harass- ment, the applicant shall: (i) Report the taking within 12 hours to the Director, Office of Protected Resources, or his designee as set forth in the letter autho- rizing research; and (ii) Temporarily discontinue for 72 hours all field research activities that resulted in the taking. During this time period, the applicant

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32 APPENDIX C shall consult with NMFS as to the circumstances surrounding the taking and any precautions necessary to prevent future taking, and may agree to amend the research protocol, as deemed necessary by NMFS. (7) NMFS may review scientific research conducted pursuant to the General Authorization. If requested by NMFS, the applicant must cooperate with any such review and shall: (i) Allow any employee of NOAA or any other person designated by the Director, Office of Protected Resources to observe research activities; and (ii) Provide any documents or other information relating to the sci- entific research; (8) Any photographs, videotape, or film obtained during the conduct of research under the General Authorization must be identified by a state- ment that refers to the General Authorization or ESA permit number, and includes the file number provided by NMFS in the confirmation letter, the name of the photographer, and the date the image was taken. This statement must accompany the imaged) in all subsequent uses or sales. The annual report must note incidental scientific, educational, or commercial uses of the images, and if there are any such uses, the names of all photographers; and (9) Persons conducting scientific research under authority of the General Authorization may not transfer or assign any authority granted thereun- der to any other person. (e) Suspension, revocation, or modification. (1) NMFS may suspend, revoke, or modify the authority to conduct scientific research under the General Authorization if: (i) The letter of intent included false information or statements of a material nature; (ii) The research does not constitute bona fide scientific research; (iii) Research activities result in takings of marine mammals other than by Level B harassment; (iv) Research activities differ from those described in the letter of intent submitted by the applicant and letter of confirmation issued by NMFS; or (v) The applicant violates any term or condition set forth in this section. (2) Any suspension, revocation, or modification is subject to the require- ments of 15 CFR part 904.

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APPENDIX C 133 SUBPART I GENERAL REGULATIONS GOVERNING SMALL TAKES OF MARINE MAMMALS INCIDENTAL TO SPECIFIED ACTIVITIES 216.101 Purpose. The regulations in this subpart implement section 101(a)~5) (A) through (D) of the Marine Mammal Protection Act of 1972, as amended, 16 U.S.C. 1371(a)~5), which provides a mechanism for allowing, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified . . geograp llC region. 216.102 Scope. The taking of small numbers of marine mammals under section 101(a)~5) (A) through (D) of the Marine Mammal Protection Act may be allowed only if the National Marine Fisheries Service: (a) Finds, based on the best scientific evidence available, that the total taking by the specified activity during the specified time period will have a negli- gible impact on species or stock of marine mammals 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 216.106, or requirements and condi- tions contained within an incidental harassment authorization issued under 216.107, setting forth permissible methods of taking and other means of effecting the least practicable adverse impact on the species or stock of marine mammal and its habitat and on the availability of the species or stock of marine mammal for subsistence uses, paying particular attention to rook- eries, 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 govern- ing 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 subsequent subparts to this part: Incidental harassment, incidental taking and incidental, but not intentional, taking all mean an accidental taking. This does not mean that the taking is unexpected, but rather it includes those takings that are infrequent, unavoid- able or accidental. (A complete definition of "take" is contained in 216.3~. Negligible impact is an impact resulting from the specified activity that

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34 APPENDIX C 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. 216.104 Submission of requests. (a) In order for the National Marine Fisheries Service to consider authorizing the taking by U.S. citizens of small numbers of marine mammals incidental to a specified activity (other than commercial fishing), or to make a finding that an incidental take is unlikely to occur, a written request must be sub- mitted to the Assistant Administrator. All requests must include the follow- ing 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 daters) and duration of such activity and the specific geographi- cal region where it will occur; (3) The species and numbers of marine mammals likely to be found within the activity area; (4) A description of the status, distribution, and seasonal distribution (when applicable) of the affected species or stocks of marine mammals likely to be affected by such activities; (5) The type of incidental taking authorization that is being requested (i.e., takes by harassment only; takes by harassment, injury and/or death) and the method of incidental taking; (6) By age, sex, and reproductive condition (if possible), the number of marine mammals (by species) that may be taken by each type of taking identified in paragraph (a)~5) of this section, and the number of times such takings by each type of taking are likely to occur; (7) The anticipated impact of the activity upon the species or stock of marine mammal; (8) The anticipated impact of the activity on the availability of the spe- cies or stocks of marine mammals for subsistence uses; (9) The anticipated impact of the activity upon the habitat of the marine mammal populations, and the likelihood of restoration of the affected habitat; (10) The anticipated impact of the loss or modification of the habitat on the marine mammal populations involved; (11) The availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks, their habitat, and on their availability for subsistence

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APPENDIX C (b) 135 uses, paying particular attention to rookeries, mating grounds, and areas ~ . . . ^. 01 Saw. tar slgm~lcance; (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 cooperation or information that identifies what measures have been taken and/or will be taken to mini- mize 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 communi- ties to discuss proposed activities and to resolve potential conflicts regarding any aspects of either the operation or the plan of coopera- tion; (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 activ- ity, to resolve conflicts and to notify the communities of any changes in the operation; (13) The suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species, the level of taking or impacts on populations of marine mammals that are expected to be present while conducting activities and suggested means of minimizing burdens by coordinating such reporting requirements with other schemes already applicable to persons conducting such activity. Monitoring plans should include a description of the survey techniques that would be used to determine the movement and activity of marine mammals near the activity liters) including migration and other habitat uses, such as feeding. Guidelines for developing a site-specific monitor- ing plan may be obtained by writing to the Director, Office of Protected Resources; and (14) Suggested means of learning of, encouraging, and coordinating research opportunities, plans, and activities relating to reducing such incidental taking and evaluating its effects. (1) The Assistant Administrator shall determine the adequacy and com- pleteness of a request and, if determined to be adequate and complete, will begin the public review process by publishing in the FEDERAL REGISTER either: (i) A proposed incidental harassment authorization; or

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136 APPENDIX C (ii) A notice of receipt of a request for the implementation or re- implementation 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, sugges- tions, and comments for a period not to exceed 30 days from the date of publication in the FEDERAL REGISTER. All information and sugges- tions 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 negli- gible 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 negli- gible 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. 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 impacts by all persons conducting the activity. (b) For allowed activities that may result in incidental takings of small numbers of marine mammals by harassment, serious injury, death or a com- bination thereof, specific regulations shall be established for each allowed activity that set forth: (1) Permissible methods of taking;

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APPENDIX C 137 (2) Means of effecting the least practicable adverse impact on the species and its habitat and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses. (c) Regulations will be established based on the best available information. As new information is developed, through monitoring, reporting, or research, the regulations may be modified, in whole or in part, after notice and oppor- tunity 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 Authorization shall be submitted to the Director, Office of Protected Resources. The information to be submitted in a request for an authorization will be specified in the appropriate sub-part to this part or may be obtained by writing to the above named person. (b) Issuance of a Letter of Authorization will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under the specific regulations. (c) Letters of Authorization will specify the period of validity and any addi- tional 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 ad- verse impact 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 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. (g) A violation of any of the terms and conditions of a Letter of Authoriza- tion or of the specific regulations shall subject the Holder and/or any indi- vidual who is operating under the authority of the Holder's Letter of Autho- rization to penalties provided in the MMPA.

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138 APPENDIX C 216.107 Incidental harassment authorization for Arctic waters. (a) Except for activities that have the potential to result in serious injury or mortality, which must be authorized under 216.105, incidental harassment authorizations may be issued, following a 30-day public review period, to allowed activities that may result in only the incidental harassment of a small number of marine mammals. Each such incidental harassment authorization shall set forth: (1) Permissible methods of taking by harassment; (2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses; and (3) Requirements for monitoring and reporting, including requirements for the independent peer-review of proposed monitoring plans where the proposed activity may affect the availability of a species or stock for taking for subsistence uses. (b) Issuance of an incidental harassment authorization will be based on a determination that the number of marine mammals taken by harassment will be small, will have a negligible impact on the species or stock of marine mammals, and will not have an unmitigable adverse impact on the avail- ability of species or stocks for taking for subsistence uses. (c) An incidental harassment authorization will be either issued or denied within 45 days after the close of the public review period. (d) Notice of issuance or denial of an incidental harassment authorization will be published in the FEDERAL REGISTER within 30 days of issuance of a determination. (e) Incidental harassment authorizations will be valid for a period of time not to exceed 1 year but may be renewed for additional periods of time not to exceed 1 year for each reauthorization. (f) An incidental harassment authorization shall be modified, withdrawn, or suspended if, after notice and opportunity for public comment, the Assistant Administrator determines that: (1) The conditions and requirements prescribed in the authorization are not being substantially complied with; or (2) The authorized taking, either individually or in combination with other authorizations, is having, or may have, more than a negligible impact on the species or stock or, where relevant, an unmitigable adverse impact on the availability of the species or stock for subsistence uses. (g) The requirement for notice and opportunity for public review in 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 well-being 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 holder and/or any individual who is

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APPENDIX C 139 operating under the authority of the holder's incidental harassment author) zation to penalties provided in the MMPA. 216.108 Requirements for monitoring and reporting under incidental harassment authorizations for Arctic waters. (a) Holders of an incidental harassment authorization in Arctic waters and their employees, agents, and designees must cooperate with the National Marine Fisheries Service and other designated Federal, state, or local agen- cies to monitor the impacts of their activity on marine mammals. Unless stated otherwise within an incidental harassment authorization, the holder of an incidental harassment authorization effective in Arctic waters must notify the Alaska Regional Director, National Marine Fisheries Service, of any activities that may involve a take by incidental harassment in Arctic waters at least 14 calendar days prior to commencement of the activity. (b) Holders of incidental harassment authorizations effective in Arctic waters may be required by their authorization to designate at least one qualified biological observer or another appropriately experienced individual to observe and record the effects of activities on marine mammals. The number of observers required for monitoring the impact of the activity on marine mammals will be specified in the incidental harassment authorization. If observers are required as a condition of the authorization, the observers) 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 moni- toring plans or other research proposals must be independently peer-reviewed prior to issuance of an incidental harassment authorization under this sub- part. In order to complete the peer-review process within the time frames mandated by the MMPA for an incidental harassment authorization, a pro- posed monitoring plan submitted under this paragraph must be submitted to the Assistant Administrator no later than the date of submission of the appli- cation for an incidental harassment authorization. Upon receipt of a complete monitoring plan, and at its discretion, the National Marine Fisheries Service will either submit the plan to members of a peer review panel for review or within 60 days of receipt of the proposed monitoring plan, schedule a work- shop 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

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140 APPENDIX C observer aboard vessels, platforms, aircraft, etc., to monitor the impact of activities on marine mammals. (f) (1) As specified in the incidental harassment authorization, the holder of an incidental harassment authorization for Arctic waters must submit reports to the Assistant Administrator within 90 days of completion of any individual components of the activity (if any), within 90 days of completion of the activity, but no later than 120 days prior to expiration of the incidental harassment authorization, whichever is earlier. This report must include the following information: (i) Dates and typed) of activity; (ii) Dates and locations) 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 con- ducted 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.