Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules 28379

the current regulations that would apply

irrespective of this rulemaking.

III. Administrative Requirements

A. Public Hearing

A public hearing will be held, if

requested, to discuss the proposed

amendment in accordance with section

307(d)(5)of the Clean Air Act. Persons

wishing to make oral presentations

should contact EPA at the address given

in the ADDRESSES section of this

preamble. Oral presentations will be

limited to 15 minutes each. Any

member of the public may file a written

statement with EPA before, during, or

within 30 days after the hearing. Written

statements should be addressed to the

Air Docket Section address given in the

ADDRESSES section of this preamble.

A verbatim transcript of the hearing

and written statements will be available

for public inspection and copying

during normal working hours at EPA’s

Air Docket Section in Washington, DC

(see ADDRESSES section of this

preamble).

B. Docket

The docket is an organized and

complete file of all the information

considered by EPA in the development

of this rulemaking. The docket is a

dynamic file, since material is added

throughout the rulemaking

development. The docketing system is

intended to allow members of the public

and industries involved to identify and

locate documents readily so that they

may effectively participate in the

rulemaking process. Along with the

statement of basis and purpose of the

proposed and promulgated test method

revisions and EPA responses to

significant comments, the contents of

the docket, except for interagency

review materials, will serve as the

record in case of judicial review

[Section 307(d)(7)(A)].

C. Executive Order 12866 Review

Under Executive Order (E.O.) 12866,

the EPA must determine whether the

proposed regulatory action is

‘‘significant’’ and therefore, subject to

the Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Order defines

‘‘significant’’ regulatory action as one

that is likely to lead to a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety in

State, local, or tribal governments or

communities;

(2) Create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency;

(3) Materially alter the budgetary

impact of entitlements, grants, user fees

or loan programs or the rights and

obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Pursuant to the terms of Executive

Order 12866, OMB has determined that

this proposed rule is not ‘‘significant’’

because the annual effect on the

economy will not exceed $100 million.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

of 1980 requires the identification of

potentially adverse impacts of Federal

regulations upon small business

entities. The RFA specifically requires

the completion of an analysis in those

instances where small business impacts

are possible. This rulemaking does not

impose emission measurement

requirements beyond those specified in

the current regulations, nor does it

change any emission standard. Because

this rulemaking imposes no adverse

economic impacts, an analysis has not

been conducted.

Pursuant to the provision of 5 U.S.C.

605(b), I hereby certify that the

promulgated rule will not have an

impact on small entities because no

additional costs will be incurred.

E. Paperwork Reduction Act

This rule does not change any

information collection requirements

subject to Office of Management and

Budget review under the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501

et seq.

F. Statutory Authority

The statutory authority for this

proposal is provided by sections 111

and 301(a) of the Clean Air Act, as

amended: 42 U.S.C., 7411 and 7601(a).

List of Subjects in 40 CFR Part 60

Environmental protection,

Administrative practice and procedure,

Air pollution control, Aluminum,

Ammonium sulfate plants, Batteries ,

Beverages, Carbon monoxide, Cement

industry, Coal, Copper, Dry cleaners,

Electric power plants, Fertilizers,

Fluoride, Gasoline, Glass and glass

products, Grains, Graphic arts industry,

Heaters, Household appliances,

Insulation, Intergovernmental relations,

Iron, Labeling, Lead, Lime, Metallic and

nonmetallic mineral processing plants,

Metals, Motor vehicles, Natural gas,

Nitric acid plants, Nitrogen dioxide,

Paper and paper products industry,

Particulate matter, Paving and roofing

materials, Petroleum, Phosphate,

Plastics materials and synthetics,

Polymers, Reporting and recordkeeping

requirements, Sewage disposal, Steel,

Sulfur oxides, Sulfuric acid plants,

Tires, Urethane, Vinyl, Volatile organic

compounds, Waste treatment and

disposal, Zinc.

Dated: May 22, 1995.

Carol M. Browner,

Administrator.

[FR Doc. 95–13153 Filed 5–30–95; 8:45 am]

BILLING CODE 6560–50–P

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.

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
28380 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules

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 activityspecific 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
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules 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
28382 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules

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
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules 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

§ 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.

§ 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

§ 228.5, or requirements and conditions

contained within an incidental

harassment authorization issued under

§ 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.

§ 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 § 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.

§ 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;
28384 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules

(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.

§ 228.5 Specific regulations.

(a) For all petitions for regulations

under this paragraph, applicants must

provide the information requested in

§ 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,
Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules 28385

through monitoring, reporting, or

research, the regulations may be

modified, in whole or in part, after

notice and opportunity for public

review.

§ 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

§ 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

§ 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.

§ 228.7 Incidental harassment

authorization.

(a) Except for activities that have the

potential to result in serious injuries

(that may be authorized under § 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

§ 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.

§ 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
28386 Federal Register / Vol. 60, No. 104 / Wednesday, May 31, 1995 / Proposed Rules

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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