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e-CFR data is current as of September 23, 2020

Title 50Chapter IISubchapter CPart 219 → Subpart A


Title 50: Wildlife and Fisheries
PART 219—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS


Subpart A—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the California Current


Contents
§219.1   Specified activity and specified geographical region.
§219.2   Effective dates.
§219.3   Permissible methods of taking.
§219.4   Prohibitions.
§219.5   Mitigation requirements.
§219.6   Requirements for monitoring and reporting.
§219.7   Letters of Authorization.
§219.8   Renewals and modifications of Letters of Authorization.
§§219.9-219.10   [Reserved]

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§219.1   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.

(b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the California Current Ecosystem.

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§219.2   Effective dates.

Regulations in this subpart are effective October 30, 2015, through October 30, 2020.

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§219.3   Permissible methods of taking.

(a) Under LOAs issued pursuant to §216.106 and §219.7 of this chapter, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in §219.1(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

(b) The incidental take of marine mammals under the activities identified in §219.1(a) of this chapter is limited to the indicated number of takes on an annual basis (by Level B harassment) or over the five-year period of validity of these regulations (by mortality) of the following species:

(1) Level B harassment:

(i) Cetaceans:

(A) Gray whale (Eschrichtius robustus)—346;

(B) Humpback whale (Megaptera novaeangliae)—14;

(C) Minke whale (Balaenoptera acutorostrata)—13;

(D) Sei whale (Balaenoptera borealis)—1;

(E) Fin whale (Balaenoptera physalus)—33;

(F) Blue whale (Balaenoptera musculus)—24;

(G) Sperm whale (Physeter macrocephalus)—65;

(H) Pygmy or dwarf sperm whale (Kogia spp.)—42;

(I) Cuvier's beaked whale (Ziphius cavirostris)—146;

(J) Baird's beaked whale (Berardius bairdii)—34;

(K) Hubbs', Blainville's, ginkgo-toothed, Perrin's, lesser, or Stejneger's beaked whales (Mesoplodon spp.)—40;

(L) Bottlenose dolphin (Tursiops truncatus)—32;

(M) Striped dolphin (Stenella coeruleoalba)—301;

(N) Long-beaked common dolphin (Delphinis capensis)—348;

(O) Short-beaked common dolphin (Delphinis delphis)—5,592;

(P) Pacific white-sided dolphin (Lagenorhynchus obliquidens)—378;

(Q) Northern right whale dolphin (Lissodelphis borealis)—176;

(R) Risso's dolphin (Grampus griseus)—188;

(S) Killer whale (Orcinus orca)—13;

(T) Short-finned pilot whale (Globicephala macrorhynchus)—12;

(U) Harbor porpoise (Phocoena phocoena)—682; and

(V) Dall's porpoise (Phocoenoides dalli)—1,365.

(ii) Pinnipeds:

(A) Guadalupe fur seal (Arctocephalus philippii townsendi)—134;

(B) Northern fur seal (Callorhinus ursinus), California stock—236;

(C) Northern fur seal, Pribilof Islands/Eastern Pacific stock—11,555;

(D) California sea lion (Zalophus californianus)—4,302;

(E) Steller sea lion (Eumetopias jubatus)—1,055;

(F) Harbor seal (Phoca vitulina)—910; and

(G) Northern elephant seal (Mirounga angustirostris)—4,743.

(2) Mortality (midwater trawl gear only):

(i) Cetaceans:

(A) Bottlenose dolphin (California, Oregon, and Washington offshore stock)—8;

(B) Bottlenose dolphin (California coastal stock)—3;

(C) Striped dolphin—11;

(D) Long-beaked common dolphin—11;

(E) Short-beaked common dolphin—11;

(F) Pacific white-sided dolphin—35;

(G) Northern right whale dolphin—10;

(H) Risso's dolphin—11;

(I) Harbor porpoise—5;

(J) Dall's porpoise—5;

(K) Unidentified cetacean (Family Delphinidae or Family Phocoenidae)—1.

(ii) Pinnipeds:

(A) Northern fur seal—5;

(B) California sea lion—20;

(C) Steller sea lion—9;

(D) Harbor seal—9;

(E) Northern elephant seal—5; and

(F) Unidentified pinniped—1.

(3) Mortality (pelagic longline gear only):

(i) Cetaceans:

(A) Pygmy or dwarf sperm whale—1;

(B) Bottlenose dolphin—1;

(C) Striped dolphin—1;

(D) Long-beaked common dolphin—1;

(E) Short-beaked common dolphin—1;

(F) Risso's dolphin—1; and

(G) Short-finned pilot whale—1.

(ii) Pinnipeds:

(A) California sea lion—5;

(B) Steller sea lion—1; and

(C) Unidentified pinniped—1.

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§219.4   Prohibitions.

Notwithstanding takings contemplated in §219.1 of this chapter and authorized by a LOA issued under §§216.106 and 219.7 of this chapter, no person in connection with the activities described in §219.1 of this chapter may:

(a) Take any marine mammal not specified in §219.3(b) of this chapter;

(b) Take any marine mammal specified in §219.3(b) of this chapter in any manner other than as specified;

(c) Take a marine mammal specified in §219.3(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal;

(d) Take a marine mammal specified in §219.3(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or

(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§216.106 and 219.7 of this chapter.

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§219.5   Mitigation requirements.

When conducting the activities identified in §219.1(a) of this chapter, the mitigation measures contained in any LOA issued under §§216.106 and 219.7 of this chapter must be implemented. These mitigation measures shall include but are not limited to:

(a) General conditions:

(1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon.

(2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

(3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.

(4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.

(5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel.

(b) Midwater trawl survey protocols:

(1) SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.

(2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) SWFSC shall implement the move-on rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before setting the trawl gear, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct midwater trawl survey activity when animals remain within the 1-nm zone.

(4) SWFSC shall maintain visual monitoring effort during the entire period of time that midwater trawl gear is in the water (i.e., throughout gear deployment, fishing, and retrieval). If marine mammals are sighted before the gear is fully removed from the water, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.

(5) If trawling operations have been suspended because of the presence of marine mammals, SWFSC may resume trawl operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this determination.

(6) SWFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment.

(7) SWFSC must install and use a marine mammal excluder device at all times when the Nordic 264 trawl net or other net for which the device is appropriate is used.

(8) SWFSC must install and use acoustic deterrent devices whenever any midwater trawl net is used, with two to four devices placed along the footrope and/or headrope of the net. SWFSC must ensure that the devices are operating properly before deploying the net.

(c) Pelagic longline survey protocols:

(1) SWFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station.

(2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) SWFSC shall implement the move-on rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before gear deployment, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nm zone. Implementation of the move-on rule is not required upon observation of five or fewer California sea lions.

(4) SWFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.

(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this decision.

(6) SWFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming.

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§219.6   Requirements for monitoring and reporting.

(a) Visual monitoring program:

(1) Dedicated marine mammal visual monitoring, conducted by trained SWFSC personnel with no other responsibilities during the monitoring period, shall occur:

(i) For a minimum of thirty minutes prior to deployment of midwater trawl and pelagic longline gear;

(ii) Throughout deployment of gear and active fishing of midwater trawl gear;

(iii) For a minimum of thirty minutes prior to retrieval of pelagic longline gear; and

(iv) Throughout retrieval of all research gear.

(2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.

(b) Marine mammal excluder device (MMED)—SWFSC shall conduct an evaluation of the feasibility of MMED development for the modified-Cobb midwater trawl net.

(c) Analysis of bycatch patterns—SWFSC shall conduct an analysis of past bycatch patterns in order to better understand what factors might increase the likelihood of incidental take in research survey gear. This shall include an analysis of research trawl data for any link between trawl variables and observed marine mammal bycatch, as well as a review of historical fisheries research data to determine whether sufficient data exist for similar analysis.

(d) Training:

(1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings.

(2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.

(3) SWFSC shall coordinate with NMFS' Northwest Fisheries Science Center (NWFSC) regarding surveys conducted in the California Current Ecosystem, such that training and guidance related to handling procedures and data collection is consistent.

(e) Handling procedures and data collection:

(1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS' Office of Protected Resources (OPR).

(2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination.

(3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.

(4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.

(f) Reporting:

(1) SWFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.

(2) Annual reporting:

(i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report.

(ii) These reports shall contain, at minimum, the following:

(A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;

(B) Summary information regarding use of all longline (including bottom and vertical lines) and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each gear;

(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event, descriptions of any mitigation procedures implemented or not implemented and why, and, for interactions due to use of pelagic longline, whether the move-on rule was waived due to the presence of five or fewer California sea lions;

(D) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any, and an assessment of the practice of discarding spent bait relative to interactions with pelagic longline, if any;

(E) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive;

(F) Updates as appropriate regarding the development/implementation of MMEDs and analysis of bycatch patterns; and

(G) A summary of all relevant training provided by SWFSC and any coordination with NWFSC or NMFS' West Coast Regional Office.

(g) Reporting of injured or dead marine mammals:

(1) In the unanticipated event that the activity defined in §219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the SWFSC Director (or designee). The incident must be reported immediately to OPR and the West Coast Regional Stranding Coordinator, NMFS. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:

(i) Time, date, and location (latitude/longitude) of the incident;

(ii) Description of the incident;

(iii) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility);

(iv) Description of all marine mammal observations in the 24 hours preceding the incident;

(v) Species identification or description of the animal(s) involved;

(vi) Status of all sound source use in the 24 hours preceding the incident;

(vii) Water depth;

(viii) Fate of the animal(s); and

(ix) Photographs or video footage of the animal(s).

(2) In the event that SWFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (e.g., in less than a moderate state of decomposition), SWFSC shall immediately report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS. The report must include the information identified in §219.6(g)(1) of this section. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with SWFSC to determine whether additional mitigation measures or modifications to the activities are appropriate.

(3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in §219.1(a) of this chapter (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SWFSC shall report the incident to OPR and the West Coast Regional Stranding Coordinator, NMFS, within 24 hours of the discovery. SWFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR.

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§219.7   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA.

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

(c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA.

(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in §219.8 of this chapter.

(e) The LOA shall set forth:

(1) Permissible methods of incidental taking;

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

(3) Requirements for monitoring and reporting.

(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.

(g) Notice of issuance or denial of an LOA shall be published in the Federal Register within thirty days of a determination.

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§219.8   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §§216.106 and 219.7 of this chapter for the activity identified in §219.1(a) of this chapter shall be renewed or modified upon request by the applicant, provided that:

(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in §219.8(c)(1) of this chapter), and

(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.

(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in §219.8(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

(c) An LOA issued under §§216.106 and 219.7 of this chapter for the activity identified in §219.1(a) of this chapter may be modified by OPR under the following circumstances:

(1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

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

(A) Results from SWFSC's monitoring from the previous year(s).

(B) Results from other marine mammal and/or sound research or studies.

(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the Federal Register and solicit public comment.

(2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in §219.2(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.

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§§219.9-219.10   [Reserved]

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