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e-CFR data is current as of July 9, 2020

Title 50Chapter IISubchapter CPart 219 → Subpart C


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


Subpart C—Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research in the Antarctic


Contents
§219.21   Specified activity and specified geographical region.
§219.22   Effective dates.
§219.23   Permissible methods of taking.
§219.24   Prohibitions.
§219.25   Mitigation requirements.
§219.26   Requirements for monitoring and reporting.
§219.27   Letters of Authorization.
§219.28   Renewals and modifications of Letters of Authorization.
§§219.29-219.30   [Reserved]

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§219.21   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 Antarctic Marine Living Resources Ecosystem.

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§219.22   Effective dates.

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

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§219.23   Permissible methods of taking.

(a) Under LOAs issued pursuant to §§216.106 and 219.27 of this chapter, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in §219.21(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 §219.21(a) of this chapter is limited to the indicated number of takes on an annual basis of the following species and is limited to Level B harassment:

(1) Cetaceans:

(i) Southern right whale (Eubalaena australis)—1;

(ii) Humpback whale (Megaptera novaeangliae)—92;

(iii) Antarctic minke whale (Balaenoptera bonaerensis)—6;

(iv) Fin whale (Balaenoptera physalus)—114;

(v) Sperm whale (Physeter macrocephalus)—3;

(vi) Arnoux' beaked whale (Berardius arnuxii)—37;

(vii) Southern bottlenose whale (Hyperoodon planifrons)—37;

(viii) Hourglass dolphin (Lagenorhynchus cruciger)—12;

(ix) Killer whale (Orcinus orca)—11;

(x) Long-finned pilot whale (Globicephala melas)—43; and

(xi) Spectacled porpoise (Phocoena dioptrica)—12.

(2) Pinnipeds:

(i) Antarctic fur seal (Arctocephalus philippii townsendi)—553;

(ii) Southern elephant seal (Mirounga leonina)—6;

(iii) Weddell seal (Leptonychotes weddellii)—4;

(iv) Crabeater seal (Lobodon carcinophaga)—7; and

(v) Leopard seal (Hydrurga leptonyx)—5.

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§219.24   Prohibitions.

Notwithstanding takings contemplated in §219.21 of this chapter and authorized by a LOA issued under §§216.106 and 219.27 of this chapter, no person in connection with the activities described in §219.21 of this chapter may:

(a) Take any marine mammal not specified in §219.23(b) of this chapter;

(b) Take any marine mammal specified in §219.23(b) of this chapter in any manner other than as specified;

(c) Take a marine mammal specified in §219.23(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 §219.23(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 219.27 of this chapter.

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§219.25   Mitigation requirements.

When conducting the activities identified in §219.21(a), the mitigation measures contained in any LOA issued under §§216.106 and 219.27 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) Trawl survey protocols—SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.

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§219.26   Requirements for monitoring and reporting.

(a) Visual monitoring program:

(1) 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.

(2) SWFSC shall monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance shall be recorded according to a three-point scale representing increasing seal response to disturbance.

(b) 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, recording of count and disturbance observations, 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.

(c) 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.

(d) 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 trawl gear, including number of tows, etc.;

(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;

(D) Summary information related to any on-ice disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity (1 = alert; 2 = movement; 3 = flight), and distance of closest approach;

(E) 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;

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

(G) A summary of all relevant training provided by SWFSC.

(e) 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. 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. The report must include the same information identified in §219.26(e)(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 §219.21(a) of this chapter (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), SWFSC shall report the incident to OPR 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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§219.27   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 §219.28 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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§219.28   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §§216.106 and 219.27 of this chapter for the activity identified in §219.21(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 §219.28(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 §219.28(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 219.27 of this chapter for the activity identified in §219.21(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 §219.22(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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§§219.29-219.30   [Reserved]

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