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Title 50Chapter IISubchapter CPart 219 → Subpart D


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


Subpart D—Taking Marine Mammals Incidental to Northeast Fisheries Science Center Fisheries Research in the Atlantic Coast Region


Contents
§219.31   Specified activity and specified geographical region.
§219.32   Effective dates.
§219.33   Permissible methods of taking.
§219.34   Prohibitions.
§219.35   Mitigation requirements.
§219.36   Requirements for monitoring and reporting.
§219.37   Letters of Authorization.
§219.38   Renewals and modifications of Letters of Authorization.
§§219.39-219.40   [Reserved]

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

Effective Date Note: At 81 FR 53085, Aug. 11, 2016, subpart D was added, effective from from Sept. 12, 2016, through Sept. 9, 2021.

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§219.31   Specified activity and specified geographical region.

(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Northeast Fisheries Science Center (NEFSC) 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 NEFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Atlantic coast region.

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§219.32   Effective dates.

Regulations in this subpart are effective September 12, 2016 through September 9, 2021.

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§219.33   Permissible methods of taking.

(a) Under LOAs issued pursuant to §216.106 of this chapter and §219.7, the Holder of the LOA (hereinafter “NEFSC”) may incidentally, but not intentionally, take marine mammals within the area described in §219.31(b) by Level B harassment associated with use of active acoustic systems and physical or visual disturbance of hauled-out pinnipeds and by Level A harassment, serious injury, or mortality associated with use of trawl, dredge, bottom and pelagic longline, gillnet, pot and trap, fyke net, beach seine, and rotary screw trap gears, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.

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§219.34   Prohibitions.

Notwithstanding takings contemplated in §219.31 and authorized by a LOA issued under §216.106 of this chapter and §219.7, no person may, in connection with the activities described in §219.31:

(a) Take any marine mammal not specified in §219.33(b);

(b) Take any marine mammal specified in §219.33(b) in any manner other than as specified;

(c) Take a marine mammal specified in §219.33(b) 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 §219.33(b) 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 of this chapter and §219.37.

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§219.35   Mitigation requirements.

When conducting the activities identified in §219.31(a), the mitigation measures contained in any LOA issued under §216.106 of this chapter and §219.37 must be implemented. These mitigation measures shall include but are not limited to:

(a) General conditions:

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

(3) NEFSC 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, NEFSC 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) All vessels must comply with applicable and relevant take reduction plans, including any required use of acoustic deterrent devices.

(6) All vessels must comply with applicable speed restrictions.

(7) NEFSC shall implement handling and/or disentanglement protocols as specified in the guidance provided to NEFSC survey personnel.

(b) Trawl survey protocols:

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

(2) NEFSC shall initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) NEFSC shall implement the “move-on rule.” If a marine mammal is sighted around the vessel before setting the gear, NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision.

(4) NEFSC shall maintain visual monitoring effort during the entire period of time that 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, NEFSC shall take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision.

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

(6) NEFSC shall implement standard survey protocols to minimize potential for marine mammal interaction, 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.

(c) Dredge survey protocols:

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

(2) NEFSC shall initiate marine mammal watches (visual observation) prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) NEFSC shall implement the “move-on rule.” If marine mammals are sighted around the vessel before setting the gear, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct dredge survey activity when animals remain near the vessel.

(4) NEFSC shall maintain visual monitoring effort during the entire period of time that dredge 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, NEFSC shall take the most appropriate action to avoid marine mammal interaction. NEFSC may use best professional judgment in making this decision.

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

(6) NEFSC shall carefully empty the dredge gear as quickly as possible upon retrieval to determine if marine mammals are present in the gear.

(d) Bottom and pelagic longline survey protocols:

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

(2) NEFSC 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 binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) NEFSC shall implement the “move-on rule.” If marine mammals are sighted near the vessel 30 minutes before setting the gear, the NEFSC may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, NEFSC may decide to move again or to skip the station. NEFSC may use best professional judgment in making this decision but may not elect to conduct longline survey activity when animals remain near the vessel.

(4) For the Apex Predators Bottom Longline Coastal Shark Survey, if one or more marine mammals are observed within 1 nautical mile (nmi) of the planned location in the 30 minutes before gear deployment, NEFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nmi from the observed marine mammals. If, after moving on, marine mammals remain within 1 nmi, NEFSC may decide to move again or to skip the station. NEFSC 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-nmi zone.

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

(6) If deployment or retrieval operations have been suspended because of the presence of marine mammals, NEFSC may resume such operations after there are no sightings of marine mammals for at least 15 minutes within the area or within the 1-nmi area for the Apex Predators Bottom Longline Coastal Shark Survey. NEFSC may use best professional judgment in making this decision.

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

(e) Gillnet survey protocols:

(1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall deploy gillnet gear as soon as is practicable upon arrival at the sampling station.

(2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall initiate marine mammal watches (visual observation) prior to both deployment and retrieval of the gillnet gear. When the vessel is on station during the soak, marine mammal watches shall be conducted during the soak by scanning the surrounding waters with the naked eye and binoculars (or monocular).

(3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement the “move-on rule.” If marine mammals are sighted near the vessel before setting the gear, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision but may not elect to conduct the gillnet survey activity when animals remain near the vessel.

(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision.

(5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement standard survey protocols, including continuously monitoring the gillnet gear during soak time and removing debris with each pass as the net is reset into the water to minimize bycatch.

(6) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall ensure that surveys deploy acoustic pingers on gillnets in areas where required for commercial fisheries. NEFSC must ensure that the devices are operating properly before deploying the net.

(7) NEFSC shall ensure that cooperating institutions, contracted vessels, or commercially-hired captains conducting gillnet surveys adhere to monitoring and mitigation requirements and shall include required protocols in all survey instructions, contracts, and agreements.

(8) For the COASTSPAN gillnet surveys, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains will actively monitor for potential bottlenose dolphin entanglements by hand-checking the gillnet every 20 minutes. In the unexpected case of a bottlenose dolphin entanglement, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall request and arrange for expedited genetic sampling for stock determination. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall also photograph the dorsal fin and submit the image to the NMFS Southeast Stranding Coordinator for identification/matching to bottlenose dolphins in the Mid-Atlantic Bottlenose Dolphin Photo-identification Catalog.

(f) Pot and trap survey protocols:

(1) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall deploy pot gear as soon as is practicable upon arrival at the sampling station.

(2) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall initiate marine mammal watches (visual observation) no less than 30 minutes prior to both deployment and retrieval of the pot and trap gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.

(3) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall implement the move-on rule. If marine mammals are sighted near the vessel before setting the gear, the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains, as appropriate, may decide to move the vessel away from the marine mammal to a different section of the sampling area if the animal appears to be at risk of interaction with the gear. If, after moving on, marine mammals are still visible from the vessel, the NEFSC, and/or its cooperating institutions, contracted vessels, or commercially-hired captains may decide to move again or to skip the station. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision but may not elect to conduct the pot and trap activity when animals remain near the vessel.

(4) If marine mammals are sighted near the vessel during the soak and are determined to be at risk of interacting with the gear, then the NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall carefully retrieve the gear as quickly as possible. The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains may use best professional judgment in making this decision.

(5) The NEFSC and/or its cooperating institutions, contracted vessels, or commercially-hired captains shall ensure that surveys deploy gear fulfilling all Pot/Trap universal commercial gear configurations such as weak link requirements and marking requirements as specified by applicable take reduction plans as required for commercial pot/trap fisheries.

(6) The NEFSC shall ensure that its cooperating institutions, contracted vessels, or commercially-hired captains conducting pot and trap surveys adhere to monitoring and mitigation requirements and shall include required protocols in all survey instructions, contracts, and agreements.

(g) Fyke net gear protocols:

(1) NEFSC shall conduct fyke net gear deployment as soon as is practicable upon arrival at the sampling station.

(2) NEFSC shall visually survey the area prior to both deployment and retrieval of the fyke net gear. NEFSC shall conduct monitoring and retrieval of the gear every 12- to 24-hour soak period.

(3) If marine mammals are in close proximity (approximately 328 feet [100 meters]) of the setting location, NEFSC shall determine if the set location should be moved. NEFSC may use best professional judgment in making this decision.

(4) If marine mammals are observed to interact with the gear during the setting, NEFSC shall lift and remove the gear from the water.

(5) NEFSC must install and use a marine mammal excluder device at all times when the 2-meter fyke net is used.

(h) Beach seine gear protocols:

(1) NEFSC shall conduct beach seine deployment as soon as is practicable upon arrival at the sampling station.

(2) NEFSC shall visually survey the area prior to both deployment and retrieval of the seine net gear.

(3) If marine mammals are in close proximity of the seining location, NEFSC shall lift the net and remove it from the water. NEFSC may use best professional judgment in making this decision.

(i) Rotary screw trap gear protocols:

(1) NEFSC shall conduct rotary screw trap deployment as soon as is practicable upon arrival at the sampling station.

(2) NEFSC shall visually survey the area prior to both setting and retrieval of the rotary screw trap gear. If marine mammals are observed in the sampling area, NEFSC shall suspend or delay the sampling. NEFSC may use best professional judgment in making this decision.

(3) NEFSC shall tend to the trap on a daily basis to monitor for marine mammal interactions with the gear.

(4) If the rotary screw trap captures a marine mammal, NEFSC shall carefully release the animal as soon as possible.

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§219.36   Requirements for monitoring and reporting.

(a) Visual monitoring program:

(1) Marine mammal visual monitoring shall occur: prior to deployment of beam, mid-water, and bottom trawl, bottom and pelagic longline, gillnet, fyke net, beach seine, pot, trap, and rotary screw trap gear; throughout deployment of gear and active fishing of all research gears; and 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.

(3) NEFSC shall monitor any potential disturbance of pinnipeds on ledges, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance shall be recorded according to a three-point scale of response (i.e., 1 = alert; 2 = movement; 3 = flight) to disturbance.

(b) The NEFSC shall continue to conduct a local census of pinniped haulout areas prior to conducting any fisheries research in the Penobscot River estuary to better understand the local abundance of animals. The NEFSC's census reports will now include an accounting of disturbance based on the three-point scale of response severity metrics.

(c) Training:

(1) NEFSC must conduct annual training for all chief scientists and other personnel (including its cooperating institutions, contracted vessels, or commercially-hired captains) 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. NEFSC may determine the agenda for these trainings.

(2) NEFSC 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) NEFSC shall coordinate with NMFS' Southeast Fisheries Science Center (SEFSC) regarding surveys conducted in the southern portion of the Atlantic coast region, such that training and guidance related to handling procedures and data collection is consistent.

(d) Handling procedures and data collection:

(1) NEFSC 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, NEFSC shall collect necessary data to facilitate a serious injury determination.

(3) NEFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring/or not 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) NEFSC shall record such data on standardized forms, which will be subject to approval by OPR. The data shall be collected at a sufficient level of detail (e.g., circumstances leading to the interaction, extent of injury, condition upon release) to facilitate serious injury determinations under the MMPA.

(e) Reporting:

(1) NEFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence.

(2) NEFSC shall provide written reports to OPR upon request following any marine mammal interaction (animal captured or entangled in research gear). In the event of a marine mammal interaction, these reports shall 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.

(3) Annual reporting:

(i) The period of reporting will be one year beginning at the date of issuance of the LOA. NEFSC shall submit an annual summary report to OPR not later than ninety days following the end of the reporting period.

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

(A) Annual line-kilometers surveyed during which the EK60, ME70, DSM300 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;

(B) Summary information regarding use of the following: All trawl gear, all longline gear, all gillnet gear, all dredge gear, fyke net gear, beach seine net gear, and rotary screw trap gear (including number of sets, hook hours, tows, and tending frequency specific to each gear type);

(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 from the pinniped haulout censuses in the and summary information related to any 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 NEFSC 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 the NEFSC and any coordination with the Southeast Fishery Science Center, the Greater Atlantic Regional Office, and the Southeast Regional Office, NMFS.

(f) Reporting of injured or dead marine mammals:

(1) In the unanticipated event that the specified activity clearly causes the take of a large whale (i.e., entanglement or ship strike) or if the NEFSC and/or its cooperating institutions observe a carcass entangled in gear or struck by any vessel, the NEFSC and/or its cooperating institutions must immediately report the incident to 866-755-6622 in the Northeast region (VA-ME) and 877-WHALE-HELP in the Southeast region (FL-NC). If personnel are unable to call these numbers, personnel must contact the United States Coast Guard (USCG). For active entanglements, NEFSC personnel and/or its cooperating institutions are not allowed to remove any gear until they receive a temporary authorization from NMFS.

(2) In the unanticipated event that the activity defined in §219.31(a) clearly causes the take of a marine mammal in a prohibited manner, NEFSC and/or its cooperating institution 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 NEFSC Director (or designee). For large whales, the NEFSC and/or its cooperating institutions must first contact the hotline numbers or the USCG as outlined in paragraph (f)(1) of this section. The NEFSC must also report the incident immediately to OPR, the Greater Atlantic Regional Stranding Coordinator, and the Southeast Regional Stranding Coordinator, NMFS. OPR will review the circumstances of the prohibited take and work with NEFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. 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 (including wind speed and direction, Beaufort sea state, cloud cover, and 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).

(3) In the event that NEFSC and/or its cooperating institutions discover 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), NEFSC shall immediately report the incident to OPR, the Greater Atlantic Regional Stranding Coordinator, and the Southeast Regional Stranding Coordinator, NMFS. For large whales, the NEFSC and/or its cooperating institutions must first contact the hotline numbers or the USCG as outlined in paragraph (f)(1) of this section. The report must include the same information identified in paragraph (f)(2) of this section. Activities may continue while OPR reviews the circumstances of the incident. OPR will work with NEFSC to determine whether additional mitigation measures or modifications to the activities are appropriate.

(4) In the event that NEFSC and/or its cooperating institutions discover an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in §219.31(a) (e.g., previously wounded animal, carcass with moderate to advanced decomposition, scavenger damage), NEFSC shall report the incident to OPR, the Greater Atlantic Regional Stranding Coordinator, and the Southeast Regional Stranding Coordinator, NMFS within 24 hours of the discovery. For large whales, the NEFSC and/or its cooperating institutions must first contact the hotline numbers or the USCG as outlined in paragraph (f)(1) of this section. NEFSC shall provide photographs or video footage or other documentation of the stranded animal sighting to OPR, the Greater Atlantic Regional Stranding Coordinator, and the Southeast Regional Stranding Coordinator, NMFS.

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§219.37   Letters of Authorization.

(a) To incidentally take marine mammals pursuant to these regulations, NEFSC 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, NEFSC 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, NEFSC must apply for and obtain a modification of the LOA as described in §219.38.

(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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§219.38   Renewals and modifications of Letters of Authorization.

(a) An LOA issued under §216.106 of this chapter and §219.37 for the activity identified in §219.31(a) 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 paragraph (c)(1) of this section), 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 in paragraph (c)(1) of this section) 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 of this chapter and §219.37 for the activity identified in §219.31(a) 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 NEFSC 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 NEFSC'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 §219.32(b), 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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§§219.39-219.40   [Reserved]

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