[Code of Federal Regulations]
[Title 50, Volume 7]
[Revised as of January 1, 2007]
From the U.S. Government Printing Office via GPO Access
[CITE: 50CFR403.04]

[Page 836-838]
 
                    TITLE 50--WILDLIFE AND FISHERIES
 
CHAPTER IV--JOINT REGULATIONS (UNITED STATES FISH AND WILDLIFE SERVICE, 
 
PART 403_TRANSFER OF MARINE MAMMAL MANAGEMENT AUTHORITY TO STATES--Table
 
Sec. 403.04  Determinations and hearings under section 109(c) of 

the MMPA.

    (a) Introduction. In order to gain approval of its marine mammal 
management program the state must provide for a process, consistent with 
section 109(c) of the Act, to determine the optimum sustainable 
population of the species and the maximum number of animals that may be 
taken from populations it manages without reducing the species below 
OSP. The state process must be completed before the state may exercise 
any management authority over the subject marine mammals, and it must 
include the elements set forth below.
    (b) Basis, purpose, and scope. The process set forth in this section 
is applicable to and required for only the determination of the OSP of 
the species and maximum number that may be taken without reducing it 
below its OSP and, in the case of Alaska if the species is below OSP, 
the maximum number of animals that may be taken, if any, for subsistence 
uses without preventing the species from increasing toward its OSP. The 
state need not allow the maximum take, as determined in accordance with 
this process, that is biologically permissible. The state may change 
regulations establishing bag limits, quotas, seasons, areas, manner of 
take, etc. within the maximum biologically permissible take pursuant to 
its other rulemaking criteria, authority, and procedures. Compliance 
with the process set forth in this section would not be required again 
unless the state proposes to modify its determinations of the status of 
the species with respect to its OSP or the maximum permissible take from 
that species.
    (c) Initial determination by the State. The state agency with 
responsibility for managing the species in the event management 
authority is transferred to the state shall make initial determinations 
on the basis of the best scientific evidence available of:
    (1) Whether or not it is at its OSP; (2) if so, the maximum number 
of that species that nay be taken without reducing it below its OSP; and 
(3) if not, in the case of Alaska, the maximum number of animals that 
may be taken, if any, for subsistence uses without preventing the 
species from increasing toward its OSP.
    (d) Notice and review of initial determinations and request for 
hearing. The state agency shall provide notice of its initial 
determinations to the Service and the public and shall provide access to 
or copies of the documentation supporting its determinations to the 
Service and the public. The state agency shall indicate, in the notice 
of its initial determinations, the location(s) and hours during which 
such documentation may be inspected, and the costs, if any of copies of 
such documentation. The state agency shall also indicate in the notice 
that any interested person may request a hearing regarding the initial 
determinations, and the state shall provide a reasonable time, not less 
than 30 days, for making the request, taking into account the time 
required to advise the public of the initial determinations and to make 
the supporting documentation readily available to interested persons for 
their consideration. If a request for a

[[Page 837]]

hearing is not made within the prescribed time period, the initial 
determinations shall be treated as final.
    (e) Notice of hearing. If a request for a hearing is made within the 
prescribed time period by any interested person, the state agency shall 
provide notice of the hearing to the Service and the public not less 
than 30 days in advance of the scheduled date(s) of the hearing(s). The 
notice shall include the date(s), location(s), and purpose of the 
hearing, a recitation of the initial determinations, the name(s) of the 
person(s) who will preside at the hearing, and the manner and date by 
which interested persons must notify the state agency or presiding 
officer(s) of their desire to participate in the hearing. The state 
shall also make available and distribute upon request a list of 
witnesses and description of the documentation and other evidence that 
will be relied upon by the state's witnesses in support of its initial 
determinations sufficiently in advance of the hearing date so as to 
allow interested persons to prepare questions and supporting or rebuttal 
testimony for the hearing.
    (f) Conduct of the hearing. (1) The hearing shall be publicly 
conducted and reported verbatim by an official reporter.
    (2) The state shall sponsor all written documentation in support of 
its determinations with witnesses who are able, by virtue of training 
and experience, to respond fully to cross-examination regarding the 
facts and conclusions contained therein provided that, except by 
agreement of the parties, the state agency may not call any witnesses or 
introduce any documentation into the record unless the advance notice 
requirements of paragraph (e) of this section are met with respect to 
such witnesses or documentation.
    (3) Any interested person who has notificed the state agency of his 
desire to participate in the hearing pursuant to paragraph (e) of this 
section may participate in the hearing by presenting oral or written 
testimony or cross-examining the witnesses or other parties with respect 
to matters relevant to the state's initial determinations, provided that 
any such written documentation must be sponsored by a witness who is 
able, by virtue of training and experience, to respond fully to cross-
examination regarding the facts and conclusions contained therein.
    (4) The presiding officer(s) shall conduct the hearing in accordance 
with such other rules of evidence, criteria, and procedures as are 
necessary and appropriate for the expeditious and effective 
determination of the issues. The presiding officer(s) may provide for 
oral argument and/or written briefs at the end of the hearing.
    (5) Final determinations on the issues specified in paragraph (c) of 
this section must be supported by the best available scientific 
information so as to insure that any taking will be consistent with the 
maintenance of OSP.
    (g) Review of the hearing record and final determinations. (1) The 
state agency shall provide for either:
    (i) Review and evaluation of the hearing record by the presiding 
officer(s) and transmittal by the presiding officer(s) of recommended 
final determinations to the decision-maker(s) in the state agency; or
    (ii) Review and evaluation of the hearing record and final 
determinations by the state agency without benefit of any 
recommendations by the presiding officer(s). In any event, the final 
determinations by the state agency must be made solely on the basis of 
the record developed at the hearing. The state agency in making its 
final determinations, and/or presiding officer(s) in making his (their) 
recommended determinations, may not rely on oral or written evidence 
which was not presented at the hearing and made available to the parties 
for cross-examination and rebuttal testimony. Any such oral or written 
information transmitted to the presiding officer(s) or other members of 
the state agency responsible for the final determinations shall be 
treated as ex parte communications and may not be considered part of the 
record for decision.
    (2) The state agency shall make final determinations of the issues 
set forth in paragraph (c) of this section and shall include in its 
statement of final determinations a statement of findings and 
conclusions and the reasons or basis therefor.

[[Page 838]]

    (3) The state agency shall advise the Service and the public of its 
final determinations and shall provide access to or copies of its 
decision document and Hearing Record.
    (h) Judicial review. The state agency's final determinations after a 
hearing must be supported by substantial evidence in the record of the 
hearing. Opportunity for judicial review of the state agency's final 
determinations must be available under state law. The scope of judicial 
review shall be equivalent to that provided for in 5 U.S.C. 706(2) (A) 
through (E).