(3) Identity of the marine mammal and the quantity to be taken;

(4) Proposed location of taking; (5) Method of taking;

(6) Proposed disposition of parts and products and method of shipment; (7) The following certification:

I hereby certify that the foregoing information is complete, true and correct to the best of my knowledge and belief. I understand that this information is submitted for the purpose of obtaining the benefits of a permit under the Marine Mammal Protection Act of 1972 (16 U.S.C. 1361-1407) and regulations promulgated thereunder, and that any false statement may subject me to the criminal penalties of 18 U.S.C. 1001 or to penalties under the Marine Mammal Protection Act of 1972; and

(8) Signature of the applicant;

(j) Permits applied for under paragraph (i) of this section shall be terminated by reimposition of the moratorium or any closure of a season by the State of Alaska.

(k) Permits issued under paragraph (i) of this section shall contain such terms and conditions as the Administrator may deem appropriate to ensure that any taking and subsequent disposition shall be in accordance with the Act, with these regulations, and with the applicable provisions of Alaska's approved laws and regulations and shall include:

(1) The number of animals which are authorized to be taken;

(2) The location from which they may be taken;

(3) The method of taking;

(4) The period during which the permit is valid, which period shall be subject to reimposition of the moratorium, or any closure of a season by the State of Alaska;

(5) Any requirements for reports or rights of inspection with respect to any activities carried out pursuant to the permit;

(6) The conditions of sale or other disposition of any parts or products including any marking requirements; and

(7) A reasonable fee covering the cost of issuance of such permit, including an appropriate apportionment of overhead and administrative expenses of the Department of Commerce. In no event will the cost be less than the

fee for the comparable non-resident license or permit issued by the State of Alaska.

APPENDIX-TAKING OF MARINE MAMMALS INCIDENTAL TO COMMERCIAL FISHING OPERATION; EXPEDITED PROCEDURES FOR CONSIDERATION OF PROPOSED QUOTAS AND AMENDED REGULATIONS

1. Basis and purpose. (a) Sections 101(a)(2) and 103(e) of the Marine Mammal Protection Act, 16 U.S.C. 1317(a)(2) and 1373(e), and these regulations authorize the Director, National Marine Fisheries Service, to amend regulations governing the taking of marine mammals incidental to commercial fishing operations. In amending regulations, the Act refers the Director to Section 103(e) (16 U.S.C. 1373(e)).

(b) The purpose of these regulations is to establish rules of practice and procedure for proceedings commenced under Section 103(e) on or about August 1, 1977 concerning the amendment of regulations and quotas on the taking of marine mammals incidental to commercial fishing operations.

2. Definitions. Definitions shall be the same as in 50 CFR 216.3 except as follows: (a) "Party" means for purposes of these regulations:

(1) The Director or his representative; (2) The Marine Mammal Commission or its representative;

(3) A person who has, pursuant to paragraph 5, notified the Director by the final date specified in the notice of hearing of his or her intent to participate in the hearing.

(b) (1) "Witness" means, for the purposes of these regulations, any expert or other person who delivers testimonial evidence, or who identifies real or documentary evidence under paragraphs 11 (d) and (e). A person may be both a party and a witness.

(2) "Expert" means one possessing knowledge not acquired by ordinary persons, with reference to a particular subject.

(c) "Director" means, for the purposes of these regulations, the Director of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration.

3. Scope of regulations. These procedural regulations govern the practice and procedure in hearings described in paragraph 1(b). These hearings will be governed by the provisions of 5 U.S.C. 556 and 557 of the Administrative Procedure Act. They shall be construed to secure the just, speedy, and inexpensive determination of all issues raised with respect to amending the regulations governing the taking of marine mammals incidental to commercial fishing operations pursuant to section 103(e) of the Act, with full protection for the rights of all persons affected thereby.

4. Notice of hearing. (a) A notice of hearing on any proposed regulations on the taking of marine mammals incidental to commercial fishing operations shall be published in the FEDERAL REGISTER.

(b) The notice shall state:

(1) The Director's intention to amend regulations on the taking of marine mammals incidental to commercial fishing operations under section 103(e) of the Act;

(2) The nature of the hearing;

(3) The place and date of the hearing. The date shall not be less than thirty (30) days after publication of notice of the hearing;

(4) The legal authority under which the hearing will be held;

(5) The proposed regulations;

(6) A summary of the statements and studies described in section 103(d) (1)–(4) of the Act. The notice shall indicate that these statements and studies have been published in full and made available to the public, and shall set forth the ways in which individual persons may have copies of these statements and studies placed at their disposal;

(7) Issues of fact which may be involved in the hearing, together with the express statement that the hearing will not necessarily be limited to these issues and that evidence relevant to other issues may be submitted at the hearing, subject to rulings of the presiding officer on the materiality of such issues;

(8) The date of publication of any draft Environmental Impact Statement, and the place(s) where the draft and comments thereon may be viewed and copied;

(9) Any written advice received from the Marine Mammal Commission;

(10) The place(s) where records and documents submitted prior to the hearing will be kept for public inspection;

(11) A list of employees of the United States who will or may reasonably be expected to be involved in the decisional process on the regulations, including the Director and Deputy Director, to whom and by whom ex parte communications relevant to the merits of the proceeding by or to parties to the proceeding are prohibited under the provisions of section 4 of the Government in the Sunshine Act of 1976, Pub. L. 94-409;

(12) The final date for filing with the Director a notice of intent to participate in the hearing pursuant to paragraph 5;

(13) The docket number assigned to the case which shall be used in all subsequent proceedings;

(14) The name of the presiding officer; (15) The final date for submission of direct expert testimony.

5. Notification by interested persons. Any person desiring to participate as a party shall notify the Director by certified mail on or before the date specified in the notice. Persons who fail to notify the Director shall be deemed to have waived their right to par

ticipate as parties in any part of the proceeding.

6. Presiding officer. (a) Upon publication of the notice of hearing pursuant to paragraph 4, the Director shall appoint a presiding officer pursuant to 5 U.S.C. 3105. No individual who has any conflict of interest, financial or otherwise, shall serve as presiding officer in such proceeding.

(b) The presiding officer, in any proceeding under this subpart, shall have power to:

(1) Adjourn the hearing, but not to change the time and place of the hearing specified in the notice of hearing without the consent of all parties;

(2) Rule upon motions, requests, and admissibility of real documentary, and testimonial evidence;

(3) Administer oaths and affirmations, question witnesses, and direct witnesses to testify;

(4) Modify or waive any rule with consent of all parties;

(5) Receive written arguments, comments, and briefs and hear oral argument;

(6) Render a recommended decision and certify the record of the proceeding to the Director;

(7) Do all acts and take all measures, including regulation of media coverage, for the maintenance of order at and the efficient conduct of the proceeding.

(c) In case of the absence of the original presiding officer or his inability to act, the power and duties to be performed by the original presiding officer under this part in connection with a proceeding may, without abatement of the proceeding, be assigned to any other presiding officer as ordered by the Director.

(d) The presiding officer may upon his own motion withdraw as presiding officer in a proceeding if he deems himself to be disqualified.

(e) A presiding officer may be requested to withdraw at any time by a party prior to the recommended decision. Upon the filing in good faith of a timely and sufficient affidavit alleging the presiding officer's personal bias, malice, conflict of interest of other basis which might result in prejudice to a party, the hearing shall recess. The Director shall immediately determine the matter as a part of the record and decision in the proceeding, after making such investigation or holding such hearings, or both as he may deem appropriate.

7. Submission of evidence before the start of the hearing. (a) All direct testimony of experts, including accompanying exhibits, must be submitted to the presiding officer and all parties in writing no later than the date specified in the notice of the hearing (section 4). Such testimony need not be in affidavit form. Direct testimony by other witnesses and real and documentary evi

dence is encouraged, but is not required to be submitted before the start of the hearing.

(b) The direct testimony submitted shall contain:

(1) A concise statement of the witness' interest in the proceeding and his position regarding the issues presented. If the direct testimony is presented by a witness who is not a party, the witness shall state his relationship to the party;

(2) Facts that are relevant and material.

(c) Seven copies of all direct expert testimony must be submitted to the National Marine Fisheries at the address listed in Section 8.

(d) No objections or motions concerning the relevance of evidence submitted prior to the hearing or the materiality of the issue to which it relates shall be entertained by the presiding officer before such evidence is introduced into the record at the hearing.

8. Mailing address. Unless otherwise specified in the notice of hearing, all evidence shall be addressed to the Presiding officer, c/o Director, National Marine Fisheries Service, Washington, D.C. 20235. Each item of real and documentary evidence and all written direct testimony shall be clearly marked with the docket number of the proceedings.

9. Inspection and copying of evidence and other documents forming part of the record of the hearing. Any evidence submitted by the parties at any point in a proceeding under these regulations may be inspected and, to the extent feasible, copied at such times and places as the presiding officer may designate. Other documents forming part of the record of the proceeding shall be made available for inspection and copying on the same basis. Any such documents not in the custody of the presiding officer may be inspected and copied in Room 408, National Marine Fisheries Service, Page Building No. 2, 3300 Whitehaven Street, N.W., Washington, D.C. 20235.

10. Ex parte communications. The provisions of section 4 of the Government in the Sunshine Act of 1976, Pub. L. 94-409, shall be adhered to in any proceeding conducted under these regulations.

11. Conduct of the hearing. (a) The hearing shall be held at the time and place fixed in the notice of hearing, unless the presiding officer, with the consent of all parties, changes the time or place. If a change occurs, the presiding officer shall publish the change in the FEDERAL REGISTER and shall expeditiously notify all parties by telephone or by mail: But if the change in time or place of hearing is made less than five days before the date previously fixed for the hearing, the presiding officer shall also announce or cause to be announced, the change at the time and place previously fixed for the hearing.

(b) At the commencement of the hearing, the presiding officer shall introduce into the record:

(1) The notice of hearing and the proposed regulations as published in the FEDERAL REGISTER;

(2) All subsequent notices pertaining to the proceeding published in the FEDERAL REGISTER;

(3) The draft Environmental Impact Statement, the comments thereon, and agency responses to the comments. If additional comments and agency responses are made at any later point in the proceeding, they shall be introduced into the record after notice to all parties by the presiding officer until he certifies the record to the Director, and thereafter by the Director; (4) A list of all parties;

(c) Each party shall have the opportunity to introduce evidence into the record at the hearing in the order determined by the presiding officer, but the Director shall introduce his evidence before any other party.

(d) (1) Testimonial evidence of experts shall be presented through their written statements after such experts are placed under oath. Such direct testimony shall not be read into evidence but shall become a part of the record subject to exclusion of irrelevant and immaterial parts thereof. The presiding officer in his discretion, may allow a limited period for oral statements on direct evidence to explain parts of an expert's written statement or to discuss matters not mentioned in such statement.

(2) Testimonial evidence of lay witnesses may be presented either by written or oral statements. The presiding officer may, in his discretion, limit the length of such testimony.

(3) The presiding officer may directly examine a witness under oath, and may propound to the witness questions submitted by parties other than the party that called the witness which he determines to be suitable for direct examination.

(e) Real and documentary evidence shall be admitted into the record only if the party introducing it or another person called by the party as a witness identifies such evidence, the issue to which it relates, the introducing party's position regarding that issue, and the manner in which the evidence supports that position. This identification shall be made under oath, and shall be required whether or not such real or documentary evidence was submitted to the presiding officer prior to the hearing under paragraph 7.

(f) Any witness by whom a party introduces testimonial evidence or identifies real or documentary evidence shall:

(1) State his or her name, address, and occupation;

(2) State qualifications for delivering or identifying such evidence. If an expert, the witness shall briefly state the scientific or technical training by which he or she qualifies as an expert;

(3) Submit to appropriate cross-examination in accordance with paragraph (g).

(g) Each party shall have the opportunity, in the order determined by the presiding officer, to cross-examine any witness by whom another party has introduced testimonial evidence; and to cross-examine any other party, as well as any identifying witness, about real and documentary evidence which such other party has introduced. Such cross-examination may be conducted by a party either in person or by an authorized counsel or representative. Cross-examiners shall be assumed to be familiar with all testimony previously delivered by the witness at the hearing. The Presiding Officer may: (1) Require the cross-examiner to outline the intended scope of the cross-examination;

(2) Limit the number of times any party or parties may cross-examine a party or other witness on the same matter;

(3) Exclude cross-examination questions that are irrelevant, concern immaterial issues, or are unduly repetitious.

(h) Scientific, technical, or commercial publications may only be used for impeaching witnesses under cross-examination unless previously introduced as evidence in accordance with these regulations.

(i) The first time counsel conducts the direct or cross-examination of a party or other witness, such counsel shall state for the record his or her authority to act as counsel and the party granting that authority. A party shall be assumed to have waived the right to introduce evidence if such party fails to produce a witness to present or identify such evidence under oath. Any party or party's counsel who fails to appear at the hearing to cross-examine a witness shall be assumed to have waived the right to crossexamine that witness.

(j) The hearing shall be publicly conducted and reported verbatim by an official reporter.

(k) If a party objects to the admission or rejection of any evidence or to any other ruling of the presiding officer during the hearing, he shall state briefly the grounds of such objection, whereupon an automatic exception will follow if the objection is overruled by the presiding officer. The ruling of the presiding officer on any objection shall be part of the record and shall be subject to review at the same time and in the same manner as the Director's final decision. Only objections made before the presiding officer may subsequently be relied upon in the proceedings.

(1) All motions and requests shall be addressed to, and ruled on by, the presiding of

ficer if made before his certification of the record, and by the Director if made thereafter.

12. Admissible evidence; official notice. (a) Any evidence introduced by a party in accordance with these regulations shall be admitted into the record unless the presiding officer determines that such evidence is irrelevant to any material issue in the proceeding, or that it is unduly repetitious.

(b) Official notice may be taken of such matters as are judicially noticed by the courts of the United States.

13. Oral and written arguments. (a) For a period of fifteen (15) days after the close of presentation of evidence, any party may file with the presiding officer any written comments on the proposed regulations, including proposed finding and conclusions and written arguments or briefs which are based on the record and which cite, if practicable, the relevant page or pages of the transcript. If a party filing a brief desires the presiding officer to reconsider any objection made by the presiding officer, that party shall state its arguments thereon as part of the brief. Immediately thereafter, each party shall be allowed five (5) days to file with the presiding officer reply briefs.

(b) The presiding officer shall provide for oral argument immediately following the period allowed for briefs. Such argument may be limited by the presiding officer to the extent necessary for the expeditious disposition of the proceeding. The presiding officer shall close the hearing immediately after the last oral argument.

(c) Oral or written arguments shall be limited to issues arising from evidence in the record.

14. Recommended decision; certification of the record. (a) Within twenty-four (24) days after the close of the hearing, the presiding officer shall make a recommended decision based on the record and transmit the decision to the Director. The recommended decision shall include:

(1) A description of the history of the proceedings;

(2) Findings on the issues of fact with reasons therefor; and

(3) Rulings on issues of law with the reasons therefor.

Copies of the recommended decision shall be sent to all parties after the close of the hearing.

(b) The presiding officer shall also transmit to the Director the entire record of the proceeding, accompanied by the presiding officer's certificate stating that, to the best of his knowledge and belief, the record is a complete and accurate compilation of all the evidence and other documents in the proceeding, except in such particulars as are specified.

(c) The recommended decision may be reviewed and copied in Room 408, National Marine Fisheries Service, Page Building No. 2, 3300 Whitehaven Street NW., Washington, D.C. 20235.

(d) Following submission of the recommended decision and the hearing record, each party shall be allowed five (5) days to file exceptions to the recommended decision with the Director. Thereafter, each party will have five days to file reply exceptions with the Director.

15. Director's decision. (a) Following the period allowed for exceptions, the Director shall make a final decision on the proposed regulations. The Director's decision may affirm, modify, or set aside in whole or in part the recommended findings, conclusions, and decision of the presiding officer. The Director may also remand the hearing record to the presiding officer for a fuller development of the record.

(b) The Director's decision shall include: (1) A description of the history of the proceeding;

(2) Findings on the issues of fact with the reasons therefor; and

(3) Rulings on issues of law, with the reasons therefor.

(c) The Director's decision, together with the final adopted regulations, shall be published in the FEDERAL REGISTER.

16. Effective date. These regulations become effective on July 12, 1977 and shall terminate on the date of publication in the FEDERAL REGISTER of the NMFS Director's final decision.

(Sec. 101(a)(2) and 103(e) of the Marine Mammal Protection Act, 16 U.S.C. 1317(a)(2) and 1373(e))

[42 FR 35967, July 13, 1977]

Stat. 905 amending 85 Stat. 480, unless otherwise noted.

SOURCE: 39 FR 41370, Nov. 27, 1974, unless otherwise noted.

Subpart A-Introduction

§ 217.1 Purpose of regulations.

The regulations of Parts 217-222 are promulgated to implement the following statutes enforced by the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, which regulate the taking, possession, transportation, sale, purchase, barter, exportation, and importation of wildlife. (Endangered Species Act of 1973, section 11(f), 87 Stat. 884, Pub. L. 93-205; Fish and Wildlife Act of 1956, 16 U.S.C. 742a-1)

§ 217.2 Scope of regulations.

The various provisions of Parts 217222 of this chapter are interrelated, and particular note should be taken that the parts must be construed with reference to each other. The regulations in Parts 217-222 apply only for fish or wildlife under the jurisdictional responsibilities of the Secretary of Commerce for the purpose of carrying out the Endangered Species Act of 1973 (see Part 222, § 222.23(a)). Endangered species of fish or wildlife other than those covered by these regulations are under the jurisdiction of the Secretary of the Interior. For rules and procedures relating to such species, see 50 CFR Parts 10-17.

§ 217.3 Other applicable laws.

No statute or regulation of any State shall be construed to relieve a person from the restrictions, conditions, and requirements contained in Parts 217222 of this chapter. In addition, nothing in Parts 217-222 of this chapter, nor any permit issued under Parts 217-228 of this chapter, shall be construed to relieve a person from any other requirements imposed by a statute or regulation of any State or of the United States, including any applicable health, quarantine, agricultural, or customs laws or regulations, or other National Marine Fisheries Service enforced statutes or regulations.