(3) A description of the organization, staffing and funding for the administration and enforcement of the laws and regulations to be reviewed;

(4) A description of the procedures to be used in granting or withholding such permits and otherwise enforcing such laws, where such laws and regulations provide for discretionary authority on the part of State officials to issue permits; and

(5) Such other materials and information as the Director may request or which the State may deem necessary or advisable to demonstrate the compatibility of such laws and regulations with the policy and purposes of the Act and the rules and regulations issued thereunder.

(d) In making a determination with respect to any State laws and regulations, the Director shall take into account:

(1) Whether such laws and regulations are consistent with the purposes and policies of the Act and the rules and regulations issued thereunder;

(2) The extent to which such laws and regulations are consistent with, or constitute an integrated management or protection program with, the laws and regulations of other jurisdictions whose activities may affect the same species or stocks of marine mammals; and

(3) The existence of, or preparations for, an overall State program regarding the protection and management of marine mammals to which the laws and regulations under review relate.

(e) To assist States in preparing laws and regulations relating to marine mammals, the Director will also, at the written request of any State, make a preliminary review of any proposed laws or regulations. This review will be advisory in nature and shall not be binding upon the Director. Notwithstanding preliminary review by the Director, once these proposed laws and regulations have been prepared in final form, they shall be subject to a final review under paragraphs (b) through (d) of this section. To be considered for preliminary review, a State shall submit the same documents as required in paragraph (c) of this sec

tion, unless otherwise specified by the Director.

(f) The implementation and enforcement of all States laws and regulations previously approved by the Director pursuant to this section shall be subject to continuous monitoring and review by the Director pursuant to such rules and regulations as he may adopt. Any modifications, amendments, deletions or additions to laws or regulations previously approved shall be deemed to be new laws and regulations for the purposes of these regulations and shall require review and approval by the Director before their adoption, except as provided in § 216.104.

(g) Nothing in this part shall prevent (1) the taking of a marine mammal by a State or local government official pursuant to § 216.22 of the regulations in this part, or (2) the adoption or enforcement of any law or regulation relating to any marine mammal taken or imported prior to the effective date of the Act.

§ 216.104 Review of State laws and regulations implementing waiver.

(a) Any State which requests a determination that its laws and regulations are consistent with the Act and applicable regulations in accordance with § 216.103(c) of this subpart, may also request a waiver of the moratorium imposed by section 101 of the Act to the extent necessary to allow such laws and regulations to take effect.

(b) If the Director, after opportunity for agency hearing as required by section 103(d) of the Act, decides to waive the moratorium so as to allow State laws and regulations to take effect, the waiver shall be contingent upon his approval of such State laws and regulations under paragraph (c) of this section and shall not be effective until publication of the notice specified in paragraph (d) of this section.

(c) The Director may approve State laws and regulations which implement a waiver of the moratorium if he determines them to be consistent with the Act, with regulations promulgated under section 103 of the Act, with the criteria of § 216.105 of this part and with all other rules or regulations pro

mulgated pursuant to the Act with respect to marine mammals.

(d) Upon approval of such State laws and regulations, the Director shall publish his decision in the FEDERAL REGISTER. The decision will summarize the management program established by the State laws and regulations, state the extent to which the moratorium is waived in order to allow such State laws and regulations to take effect, and indicate the date the State's annual report is to be submitted.

(e) Any modifications, amendments, deletions, or additions to laws or regulations previously approved, except emergency closing of seasons, shall require review and approval by the Director pursuant to paragraphs (c) through (g) of § 216.106 of these regulations before their adoption.

(f) All determinations by the Director shall be final.

§ 216.105 Approval of State laws and regulations-criteria.

Any State which applies to the Director for approval of its laws and regulations under § 216.104 must demonstrate to the Director's satisfaction, that such laws and regulations:

(a) Provide for a modern scientific resource management program, including, but not limited to, research, census, law enforcement, habitat acquisition and improvement and, when and where appropriate, the periodic or permanent protection of the species of marine mammals affected by the State's application;

(b) Establish a program which is based upon the best scientific evidence available on the relevant marine ecosystem and the role of the affected species of marine mammals in that ecosystem;

(c) Establish a program which is consistent with the primary goal of the Act, to maintain the health and stability of the marine ecosystem;

(d) Establish a program which insures that the affected species or population stock of marine mammals shall not diminish below the range of optimum sustainable population;

(e) Require cessation of taking of the affected species of marine mam

mals whenever the population is determined to be below the range of optimum sustainable population;

(f) Provide appropriate maximum quotas and seasons, whenever a taking is proposed, unless the State can show that it is more consistent with these criteria to have no quota or season;

(g) Establish quotas, seasons, and other allowances and restrictions as necessary to be consistent with the criteria of this section and in accordance with the following factors:

(1) The seasonal distribution of populations;

(2) Segregation within populations by sex and age;

(3) Discreteness of populations;

(4) Population density;

(5) Critical periods in the species life cycle;

(6) Critical habitat areas;

(7) Productivity of the population; (8) Species interactions;

(9) Percentage of retrieval by hunters;

(10) Maximization of the utilization of the species;

(11) Other uses of the species, such as recreational use or incidental catch; and

(12) Enforceability of the limitations.

(h) Contain suitable limitations on the means and methods of taking which assure that taking will be by humane means and will maximize the utilization of each animal taken.

(i) Contain provisions for significant public participation within the State in the process of implementing the waiver.

(j) Meet the criteria specified in § 216.103 of this part, to the extent such criteria may differ from those prescribed in this section.

§ 216.106 Review of approved State laws and regulations.

(a) All State laws and regulations and the conservation programs established thereby which have been approved shall be reviewed annually, unless circumstances indicate that an earlier review is appropriate.

(b) In order to facilitate such a review, each State having approved laws and regulations must submit an

annual report not later than 60 days after the close of such State's first full fiscal year following the effective date of the waiver of the moratorium and at the same time each following year. The report shall contain the following information current for each reporting period:

(1) Any changes in the State laws or regulations;

(2) Any new data on the marine mammal stocks or the marine ecosystems in question;

(3) All available information relating to harvests under the terms of a waiver;

(4) A summary of all research activity on the stocks or ecosystem affected by a waiver;

(5) Any changes in the information provided with the original request for approval;

(6) A summary of all enforcement activity, including permits issued, skins sealed, reports under permits, investigations undertaken and their dispositions;

(7) Present budget and staffing level for the marine mammal activities; and (8) Any other information which the Director may request, or which the State deems necessary or advisable.

(c) Each State having approved laws and regulations shall file a special report within 30 days, whenever any of the following occurs:

(1) A proposed change in a relevant State law or regulation, (amendments, repealers, or new legislation or regulations), which, with the exception of emergency closing of seasons, shall not be effective until the Director makes a determination pursuant to paragraphs (e) through (g) of this section; or

(2) A significant natural or manmade occurrence affecting the marine ecosystem or the stocks of marine mammals; or

(3) A significant violation of the State management program including any quotas established thereby.

(d) All State laws and regulations and the conservation programs established thereby, as well as annual reports submitted under paragraph (b) and special reports submitted under paragraph (c) of this section, shall be available for inspection and copying at

the Office of the Director, National Marine Fisheries Service, 3300 Whitehaven Street NW., Washington, D.C. 20235.

(e) Upon receipt of any report described in paragraphs (b) and (c) of this section, the Director shall, as soon as practicable, in consultation with the Marine Mammal Commission, determine preliminarily whether or not the State laws and regulations and any programs established thereby comply with the requirements of the Act and this subpart.

(f) Whenever the Director preliminarily determines, in consultation with the Marine Mamrnal Commission, that any State laws, regulations or programs established thereby are or are not in compliance with the requirements of this subpart, he shall publish notice of such preliminary determination in the FEDERAL REGISTER, inviting submission from interested persons, within 30 days of the notice, of written data, views, comments, or requests for hearings with respect to such preliminary determination.

(g) As soon as practicable after the 30-day comment period described in § 216.106(f), the Director, in consultation with the Marine Mammal Commission, shall determine whether to finally approve or disapprove the State laws and regulations. The Director's determination shall be made within 90 days after publication of the notice described in § 216.106(f), unless a hearing is held.

(h) If the Director makes a final determination to disapprove proposed changes in State laws and regulations, the State shall have the option of retaining its initially approved laws and regulations, in which case any waiver shall remain in effect. All final determinations of approval or disapproval shall be published in the FEDERAL REGISTER; upon publication of disapproval, unless a State elects within 30 days to retain its originally approved laws and regulations, any waiver conditioned upon approval of State laws and regulations as provided in this subpart shall terminate, and all provisions of the Act shall be reinstated and supersede such State laws and regulations.

§ 216.107 Notification.

The State shall immediately notify the Director when the mortality due to retrieved and unretrieved harvest for any species or population stock of marine mammal reaches 90 percent of the numerical extent of the waiver prescribed by subpart I of this part for that species or population stock. The Director shall publish a Notice of Receipt in the FEDERAL REGISTER concerning such notification as soon after receipt as practicable.

[41 FR 36659, Aug. 31, 1976; 42 FR 3845, Jan. 21, 1977]

§ 216.108 Enforcement.

The appropriate official in each State shall utilize such methods as he deems appropriate to assure to the maximum extent practicable that the quotas, seasons, and other limitations in approved State laws and regulations are not exceeded. These methods may include, but are not limited to, patrols, surveillance, investigation, permit recordkeeping and reporting requirements, and tagging and marking requirements.

§ 216.109 [Reserved]

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 participate 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 evidence 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.