21926 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

15 CFR Part 902

50 CFR Parts 216 and 222

[Docket No. 960419116–6116–01; I.D.

122492C]

RIN 0648–AD11

Marine Mammal Special Exception

Permits to Take, Import and Export

Marine Mammals; Update of Office of

Management and Budget (OMB)

Approval Numbers

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Final rule.

SUMMARY: This final rule updates and

consolidates the regulations for special

exception permits to: Take, import,

export, or carry out any other otherwise

prohibited act involving marine

mammals for the purposes of scientific

research, enhancing the survival or

recovery of a marine mammal species or

stock (enhancement), educational and

commercial photography, and public

display under the Marine Mammal

Protection Act of 1972 (MMPA); take,

import, export or carry out any other

otherwise prohibited act concerning

endangered or threatened marine

mammals for scientific purposes or

enhancement under the Endangered

Species Act of 1973 (ESA); and,

determine the status and disposition of

rehabilitated stranded marine mammals.

This rule sets forth revised procedures

for these permits in order to make

administration of the NMFS marine

mammal permit program more efficient,

consistent, and predictable.

This rule also updates OMB

Paperwork Reduction Act approval

numbers for applications and reports for

special exception permits.

EFFECTIVE DATE: This final rule is

effective June 10, 1996.

ADDRESSES: National Marine Fisheries

Service, (F/PR1), 1315 East-West

Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT:

Laurel Bryant or Ann Terbush, Permits

Division, Office of Protected Resources,

301/713–2289.

SUPPLEMENTARY INFORMATION:

Purpose

A proposed rule was published (58 FR

53320, October 14, 1993) to consolidate

into a single set of regulations all

permitting requirements under the

MMPA, the ESA, and the Fur Seal Act

(FSA) to take, import, or export all

protected species under the NMFS

jurisdiction for purposes of scientific

research or enhancement, and public

display, and to provide clear procedures

for the disposition of rehabilitated

stranded marine mammals.

In contrast, this final rule implements

only a part of that proposed rule;

namely, it establishes basic permit

requirements applicable to all permits to

take, import and export marine

mammals and marine mammal parts for

purposes of scientific research and

enhancement, photography, and public

display (for captures and initial imports)

under the MMPA; provides additional

permit criteria specific to scientific

research and enhancement only; and

establishes clarified administrative

procedures for determining the

releasability or non-releasability of

rehabilitated stranded marine mammals

and their disposition.

Scope

This notice responds to the comments

and the final rule incorporates a number

of the changes recommended by

commenters. In addition, the rule

implements certain statutory changes

made to the MMPA by the MMPA

Amendments of 1994 (1994

Amendments) (Public Law 103–238)

enacted on April 30, 1994.

Photography and public display. Not

included in this final rule are the

additional requirements specific to

photography or public display

established by the 1994 Amendments.

The 1994 Amendments included

significant changes regarding these

activities. Accordingly, NMFS will

publish separate proposed rules for

public comment for these areas.

ESA species. It is important to note

that this final rule applies to the

issuance of special exception permits

under both the MMPA and ESA for

species of marine mammals only.

However, activities involving species

other than marine mammals that are

protected under the ESA will continue

to require a permit issued under

separate ESA regulations.

History

The 1993 proposed rule. The

proposed rule proposed to amend and

consolidate permit regulations under

the FSA, MMPA and the ESA to

facilitate ‘‘one-stop shopping’’ for the

issuance of permits to take ‘‘protected

species’’ (including species that are

depleted under the MMPA, and

threatened and endangered under the

ESA) for purposes of scientific research,

enhancement and public display. The

proposed rule was also designed to

establish permit conditions capable of

addressing the various circumstances

that had evolved over two decades of

issuing permits to take marine

mammals. For example, although

photography of marine mammals in the

wild is a common source of research

and educational information, the MMPA

did not provide an exception for such

an activity. The 1993 proposed rule

attempted to facilitate research related

photography under statutory provisions

for bona fide scientific research and

enhancement activities, while at the

same time guarding against the use of

research permits for commercial

activities, which had become a growing

concern. However, comments received

on the proposed rule were critical of

these provisions as being too restrictive

and bureaucratic. The new authority to

issue permits for educational and

commercial photography provided by

the 1994 Amendments eliminates the

need for addressing photography in

much detail under scientific research

permits.

The proposed rule was originally

open for public comment for a 60-day

period. A number of focused briefings

on the proposed rule were held for a

variety of interested parties, including

Congress, various groups directly

affected by the regulations, and the

public. In addition, NMFS held three

regional public hearings: Silver Spring,

MD on December 3; Oakland, CA on

December 6; and Chicago, IL on

December 8. A combined total of 53 oral

and written testimonies was submitted

for the record through the public

hearing process. Due to the level of

interest expressed, NMFS extended the

public comment period for an

additional 30 days, closing on January

28, 1994. In addition, a transcribed

question and answer session was held

with certain representatives of the

public display industry at their request.

A total of 187 comments were received

from individuals and organizations

representing the scientific research

community, public display industry,

and conservation and animal protection

interests. A discussion of and response

to those comments is detailed below.

The 1994 Amendments. The 1994

Amendments substantially revised the

MMPA. The statutory changes to the

MMPA that impact this final rule

include: Statutorily defining the term

harassment; providing a General

Authorization for bona fide research

involving only Level B harassment;

waiving the public comment process for

research permits to be issued under

emergency situations; eliminating the
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21927

statutory restriction against duplication

of scientific research projects; statutorily

providing for the issuance of permits for

purposes of educational and commercial

photography; and substantial changes to

the public display provisions of the Act,

eliminating the basis for many of the

provisions that had been included in the

proposed rule.

Response to 1993 Comments and

Discussion of 1994 Amendments. Many

commenters found the scope and

organization of the proposed rule to be

confusing, arguing that they had

difficulty determining which

regulations applied to their expressed

interest.

Organization. In the proposed rule,

each regulatory section was subdivided

into four categories: General (i.e., basic

requirements applicable to all permits),

Public display, Scientific research, and

Enhancement. This required a reviewer

to identify within each section, both the

basic permit requirements and the

requirements particular to their area of

interest.

In response, these final regulations

have been significantly reorganized by

removing non-statutory general

conditions and reporting requirements

from regulatory text; listing

requirements basic to all permits in

§§ 216.33 through 216.40 (i.e.,

application procedures, issuance

criteria, permit restrictions, conditions,

reporting requirements, amendment

procedures, and penalties); and

providing the additional requirements

applicable to each special exception

purpose in separately identified sections

(i.e., § 216.41 contains the additional

requirements for Scientific Research).

The table of contents has been revised

to include identification of sections

reserved for future photography and

public display regulations.

A number of comments questioned

why the proposed rule would amend

the Pribilof Islands and northern fur seal

regulations issued under the FSA (part

215). These regulations were included

to reduce regulatory burden and

confusion by consolidating, under the

MMPA, the requirements contained

under the FSA regarding the take,

transportation, importation, exportation

or possession of fur seals or their parts

for educational, scientific or exhibition

purposes. However, these changes to

part 215 were included in the interim

final rule for the General Authorization

for bona fide scientific research (59 FR

50372 October 3, 1994) and are,

therefore, not included with this final

rule.

Disruption as a part of harassment.

The proposed definition of harass drew

general criticism over its inclusion of

the term disruption. Commenters argued

that, combined with the 1993 proposed

appendix of approach guidelines and

reporting requirements, inclusion of the

term would create too much

bureaucratic burden, over-reporting of

takes, and stifle scientific research.

Commenters also expressed concern

that NMFS would not enforce the

moratorium on taking against someone

unintentionally harassing a marine

mammal. Members of the public

disrupting sea lions hauled-out at a

public wharf were cited as an example.

Although commenters did not believe

NMFS would institute enforcement

actions for such incidents of

unintentional harassment, or that it was

the intent of Congress to focus on such

incidents, they were concerned that

NMFS might impose a higher standard

on researchers. The 1994 Amendments

defined harassment, and it is that

definition that is included in this rule

(see § 216.3 Definitions).

Approach guidelines (Appendix B). In

view of the statutory changes defining

harassment, and in response to the

comments, NMFS has eliminated the

Appendix B listing of approach

guidelines and will instead refer

applicants to the appropriate regional

office(s) to receive any approach

guidelines developed for the species of

marine mammals specific to that region.

Reporting. Comments were generally

critical of the reporting requirements

regarding scientific research, arguing

that the detail requested on behavioral

responses was excessive, and the

amount of data requested could

compromise a researcher’s ‘‘stock-intrade’’ by forcing public documentation

of data and information before it could

be synthesized into published material.

In conjunction with the previous

discussion, NMFS points out that a

recurring theme throughout the history

of issuing permits for the harassment of

marine mammals has been the need for

objective standards for identifying

stressful responses in marine mammals

to activities and closeness of approach

which harass them. Such standards

would prove valuable in facilitating

better management practices in the wild

and controlling against activities which

may be detrimental to individual marine

mammals or their stocks. In an effort to

maintain this aspect of the reporting

requirements while at the same time

easing burdens, the reporting

requirements have been made more

flexible by emphasizing summaries of

information and researcher discretion

for determining ‘‘noteworthy’’

behavioral responses.

General take category. Many

comments expressed support for a

general take category allowing for

routine, non-invasive harassment for

purposes of scientific research,

photography and whale watching.

The 1994 Amendments defined

harassment and divided such takes into

two levels of impact: Level A

harassment has the potential to injure,

and Level B harassment has only the

potential to disturb (§ 216.3 Definitions).

Bona fide scientific research projects

which do not exceed Level B

harassment on species not listed under

the ESA are eligible for authorization

under the new General Authorization

category. This authorization is a

streamlined process without public

comment for low levels of harassment

(Level B). A final rule based on

comments received on the interim final

rule (59 FR 50372. October 3, 1994)

implementing the General

Authorization now in effect, will be

published separately in the Federal

Register. The new permit category to

harass marine mammals in the wild for

purposes of educational and commercial

photography also will allow only Level

B harassment. A proposed rule for

photography permits will be published

in the Federal Register at a later date.

With regard to whale watching, there

is no statutory exception provided for

observational cruise activities, however,

such activities can be conducted

carefully without harassing marine

mammals. Therefore, NMFS will

continue to inform prospective vessel

operators of guidelines to follow in an

effort to avoid harassment.

Fees. A great deal of controversy was

generated by NMFS’ proposal to

increase the fees for processing permits.

Comments ranged from perceiving these

fees as intentionally punitive against

various permitted activities, to detailed

suggestions for tiering the fees based on

the type of permit, the level of staff

review involved, and the financial

disposition of the applicant.

In view of the significant changes

made to the public display provisions of

the statute, the nominal fees associated

with scientific research, and a complete

absence of any likely consensus on the

subject of scientific research fees, NMFS

has eliminated the proposed fee

structure. This issue may be

reconsidered at some time in the future.

In the interim, no fee will be charged for

these special exception permits.

Ethics of captivity. Many comments

discussed the ethics of captivity,

questioning the practice of holding

marine mammals for public display and

suggesting that a ban be placed on all

captivity.

Since the passage of the MMPA in

1972, Congress has recognized the
21928 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

public display of marine mammals as an

exception to the moratorium on taking.

Congress continued to recognize public

display in the 1994 Amendments by

continuing to provide for this activity in

statute, and increasing significantly the

authority and discretion of the public

display industry over the marine

mammals they hold.

Appendix A and C. As proposed in

1993, an Appendix A was provided for

listing the activities that would require

a special exception permit. In addition,

an Appendix C provided the application

information anticipated for special

exception permits. Due to the

controversy generated by the proposed

scale of fees and the corresponding

activities listed in Appendix A, NMFS

has eliminated Appendix A. NMFS has

also eliminated Appendix C and on

request will provide application

instructions for each permit category.

Bona fide scientific research (§ 216.3).

A number of comments were critical of

the proposed definition of bona fide

scientific research, arguing that it

extended unlimited discretion to NMFS

for determining what was bona fide. The

definition in the 1994 Amendments

closely parallels the definition in the

proposed rule. In practice, NMFS

expects that the definition provides

flexibility to an applicant rather than

unlimited discretion to the agency.

Custody (§ 216.3). In response to

comments on the proposed definition,

and in consideration of the extensive

changes to the public display provisions

by the 1994 Amendments, the definition

of custody has been simplified.

Humane (§ 216.3). Several comments

were critical of the proposed definition

of humane, arguing that the definitions

utilized by the National Institutes of

Health or American Veterinary

Medicine Association should be

adopted instead. In response, NMFS

points out that the definition is

essentially identical to the definition in

the statute.

Interactive program (§ 216.3). A

number of comments expressed a range

of concerns over the definition of

interactive program. Some commenters

stated that NMFS had no authority over

these activities, while others urged the

elimination of therapeutic swim

programs due to lack of bona fide

scientific research criteria. The 1994

Amendments eliminated MMPA’s

jurisdiction over these public display

captive care and maintenance issues,

eliminating the need to define

interactive program.

Public display (§ 216.3). A number of

comments criticized the proposed

definition of public display for being at

odds with the MMPA and in violation

of First Amendment rights by including

the requirement for educational and

conservation programs as part of the

definition. It was suggested that the

proposed definition parallel that

contained in statute.

There is no definition of public

display contained in the statute. Rather,

prior to the 1994 Amendments, public

display was referred to in the context of

issuing a permit for public display to an

applicant which offers a program for

education or conservation purposes

that, based on professionally recognized

standards of the public display

community, is acceptable to the

Secretary of Commerce (Secretary). In

keeping with this reference, NMFS

included in the proposed rule reference

of these programs as part of the

definition.

The 1994 Amendments eliminated the

requirement that public display

education and conservation programs be

acceptable to the Secretary. Public

display education and conservation

programs are now only subject to selfregulation. Accordingly, reference to

education and conservation programs

has been eliminated from the definition.

Initial review process (§ 216.33(c)). A

number of comments were critical of the

initial review process, arguing that it

provided NMFS an opportunity to reject

a permit application before receiving the

benefit of public comment. The purpose

of the initial review is to ensure that an

application is appropriate, valid, and

complete prior to its publication for

public review. Premature publication

without benefit of such determination

could expose the applicant and agency

to unnecessary administrative burdens,

delays, and public confusion.

Adequate EA/EIS information

(§ 216.33(c)). Several comments

expressed confusion over the

requirement that an applicant submit

sufficient information to enable NMFS

to determine whether the proposed

activity will be categorically excluded

from further environmental

documentation under the National

Environmental Policy Act of 1969

(NEPA).

NEPA applies to federally approved,

initiated, or funded activities that

impact the human environment. As

such, it is necessary to retain this

requirement of applicants in order to

comply with NEPA. In an effort to

provide regulatory ‘‘one-stopshopping’’, NMFS is making every effort

to include up front all requirements and

provisions mandated by statute.

Compliance with NEPA is a critical

component of that process. As in the

past, NMFS will make every effort to

assist an applicant with NEPA

compliance. Nevertheless, it is the

responsibility of the applicant to

consider the potential impacts of its

proposed activity and provide the

necessary information accordingly.

Marine Mammal Commission’s

(MMC) failure to comment (§ 216.33(d)).

Many comments were critical of the

provision which would regard the

MMC’s failure to comment on an

application as a recommendation to

deny the permit. It was suggested that

the failure to comment by the MMC

should be regarded as a

recommendation to issue, and that

recommendations to deny a permit be

available for review by the applicant.

NMFS believes it would be

inappropriate to default a no-comment

to a recommendation status. However,

in the same vein, NMFS recognizes the

unfairness of defaulting to a denial

status. In response, the recommendation

to deny has been replaced with ‘‘no

objection to issuance’’ (§ 216.33(d)(2)).

With regard to comments received from

the MMC on permit applications, these

are a matter of public record and have

always been available to anyone

interested in reviewing them.

Duplication. Several comments

criticized proposed language controlling

against unnecessary duplication of

scientific research projects, pointing out

that duplication is an important aspect

of investigating the soundness of a

hypothesis. This language was a direct

implementation of statutory language

which specified scientific research to

‘‘not involve unnecessary duplication of

research.’’

The 1994 Amendments struck from

the statute the language restricting

unnecessary duplication. Therefore,

duplication is no longer a regulatory

matter except as it relates to whether a

proposed activity is bona fide scientific

research, and the need to monitor

against the cumulative impact of

activities with the potential to exceed

Level B harassment (§ 216.34(a)(4)).

Notarized copy (§ 216.35(j)). A

number of comments were critical over

the requirement that an original or

notarized copy of the special exception

permit be in the possession of the

permit holder during the time of the

authorized special exception activity.

This provision was argued as

unnecessary and too restrictive. In

reconsidering the value of this provision

for purposes of enforcement against

fraud, NMFS has determined that an

original or a copy of an original will

satisfy the intent behind this

requirement and has revised the

provision accordingly.

Import and export (§ 216.37). A

number of comments were critical of the
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21929

provisions for regulating the import and

export of marine mammal parts for

scientific research, claiming that they

were too bureaucratic and would stifle

activities such as research and

education. In addition, there was

concern expressed over lost research

opportunities and information due to

the prohibition against importing

marine mammal parts which resulted

from a lethal activity otherwise

prohibited under the Act

(§ 216.41(c)(1)(v)).

As originally mandated in 1972, the

restriction against the import and export

of marine mammal parts was designed

to prevent the development of

commercial markets for marine mammal

parts or products derived therefrom.

However, the circumstances of bona fide

scientific research involving import and

export of marine mammal parts are

varied, making clarity in regulations

difficult. In addition, previously only

the export of ESA listed species and

parts was prohibited. The 1994

Amendments extended this prohibition

to all marine mammals and marine

mammal parts, except for the export of

living marine mammals for purposes of

public display.

In response, NMFS has made every

effort to implement the intent of the law

without creating undue burden against

scientific research activities by ensuring

that adequate documentation is

provided for a part’s acquisition,

location and possession. Flexibility has

also been provided at the sole discretion

of the Office Director regarding

importation of parts for bona fide

scientific research that may have

resulted from prohibited activities. For

example, as a general rule it is illegal to

import parts that have been taken in

violation of domestic and foreign law.

However, acknowledging the research

value of some of these parts, the Office

Director may authorize their

importation for bona fide scientific

research purposes.

Major and minor amendments

(§ 216.39). Some confusion was

expressed over the need to maintain a

distinction between major and minor

amendments, suggesting that all

amendments be treated as major

amendments, thereby reducing the

confusion over the two terms. In

response, NMFS believes that not all

amendments should be required to go

through a public review process, and

that only those amendments that change

elements of a permit which are

statutorily highlighted as fundamental

permit terms and conditions should be

subject to public review (i.e., changes

in: the number and species of marine

mammals affected; the manner in which

they are taken; the location; and the

period of time the permit is valid).

Other changes (i.e., minor amendments)

are most appropriately addressed on a

case-by-case basis between the permit

holder and the Office Director without

additional opportunity for public

comment. Consistent with this policy,

comments received, and in keeping with

current administration of the program,

the process for a hearing on a minor

amendment as outlined in the proposed

rule has been eliminated from this rule.

Lethal take as critically important

(§ 216.41(b)(2)). Several commenters

criticized the use of the phrase

‘‘critically important research need’’ as

being too ambiguous a requirement for

research results involving lethal take. In

response, NMFS notes that this language

is taken directly from the statute, which

remains unchanged by the 1994

Amendments.

Publication of research results

(§ 216.41(c)(1)(ii)). A number of

commenters expressed concern over the

requirement that research results be

published within a ‘‘reasonable period

of time’’, questioning what the agency

would define as reasonable. In response,

it would be arbitrary and impractical to

define in advance what would

constitute a reasonable period of time

applicable to all circumstances. As

such, NMFS has retained this

requirement as a necessary

characteristic of bona fide scientific

research and would argue that by not

defining what is reasonable the

regulations provide adequate flexibility

and deference to the researcher. In

addition, Congress also recognized

publication and availability of research

results as necessary characteristics of

bona fide scientific research by

including these parameters in the new

statutory definition of bona fide

research (§ 216.3).

Personnel experience and direct

supervision (§§ 216.35(f)–(g) and

216.41(c)). A number of comments

expressed criticism of the requirements

that all personnel conducting permitted

activities under the authority of a

scientific research permit must be

directly supportive of and necessary for

the permitted research activity. It was

argued that this was a matter of internal

personnel management and not an issue

of regulatory concern. In addition,

several commenters argued against the

requirement that activities be conducted

under the direct supervision of the

principal investigator or a coinvestigator, finding this to be too

restrictive.

In response, permits are issued based

in significant part on the determination

that the proposed activity is to be

conducted by qualified individuals

capable of accomplishing the activity, in

this case bona fide scientific research.

Much of that determination is

necessarily based on the qualifications

of the applicant, principal investigator

(PI), co-investigator(s) and any

supportive personnel listed to conduct

work under the terms of the permit. As

such, NMFS has retained this language

and would note that discretion over

personnel matters is left entirely to the

applicant.

Direct supervision over permitted

activities by the PI or a co-investigator

has been retained by NMFS as a

necessary requirement

(§ 216.41(c)(1)(iii)). In the past,

inexperienced personnel have

conducted permitted activities

involving the take, import or export of

marine mammals without direct

supervision and left a project vulnerable

to criticism and litigation.

It is important and reasonable to

presume that the PI or a co-investigator

will be directly involved in the activity

authorized under a permit. However,

this requirement should in no way be

construed as a ‘‘draconian effort’’ to

force critical research personnel to

supervise the most routine of functions.

Rather, it is intended to ensure the

integrity of a bona fide research permit

and the activities it has authorized.

Qualified individuals may be designated

in the permit as co-investigators to

conduct, or directly supervise the

conduct of, the taking, import and

export activities authorized under a

permit, but the PI is ultimately

responsible for all such activities. To

ensure that the roles and responsibilities

of the PI and co-investigator(s) are

clearly understood, definitions for both

of these terms have been added (see

§ 216.3).

Prohibiting public display of marine

mammals held for research

(§ 216.41(c)(1)(vi)). A number of

comments expressed concern over

restricting the public display of marine

mammals held for scientific research.

Some comments identified specific

instances in which research facilities

display their marine mammals as a

means of educating the public about the

research and receiving donations for

financial support of research projects.

As scientific research and public

display are recognized by statute as two

separate activities, NMFS has retained

this restriction as a necessary

distinction between these activities.

However, in response to concerns over

the public viewing of marine mammals

involved with research projects, the

regulatory exceptions to this restriction

clearly provide adequate flexibility to
21930 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

allow such activities, under appropriate

conditions, to occur under a scientific

research permit.

Marketable products

(§ 216.41(c)(1)(vii)). One of the more

contentious areas of comment was the

prohibition against the commercial sale

of products derived from activities

conducted under a scientific research

permit. Concern was primarily

expressed by commercial entities

specializing in photographic coverage of

research. In addition, many criticized

the proposed definition of marketable

product as beyond the jurisdiction of

NMFS.

The proposed rule was in part driven

by increasing reports and concerns

about abuse of the scientific research

permit system for commercial purposes.

Although NMFS recognized the

educational and scientific value of

photographic coverage of marine

mammals in conjunction with research,

scientific research permits had, in some

instances, been exploited for

commercial purposes.

The 1994 Amendments acknowledged

the need to provide for photographic

activities in a controlled manner by

permitting low levels of harassment of

marine mammals for the purposes of

commercial and educational

photography. This new provision

eliminated the need for much of the

restrictive language included in the

proposed rule for scientific research as

well as for the need to define marketable

product.

Permit conditions and reporting

requirements. The regulatory text

establishes permit-specific conditions

and restrictions. By contrast, nonstatutory general permit conditions and

reporting requirements have been

eliminated from the regulatory text. As

a general rule, these general conditions

and reporting requirements tend to vary

given the nature of the permitted

activity. Elimination of the permit

conditions and reporting requirements

provides NMFS with greater flexibility,

allowing it to incorporate only those

conditions and requirements that are

appropriate to the permit. Appropriate

general conditions and reporting

requirements will be incorporated into

the permit itself, and must be adhered

to along with all other terms and

conditions.

Most of the general conditions and

reporting requirements that may be

incorporated into a permit issued under

this subpart, appear below.

Additionally, these conditions and

requirements may also be obtained from

NMFS upon request (see ADDRESSES).

Conditions and Reporting

Requirements for All Permits

Conditions

1. The permit holder shall provide the

Director (Regional Director) written

notice of the date, time, and port at least

one week in advance of any import or

export, unless this notice is waived by

the Regional Director in writing in

advance.

2. The permit holder shall not, in

interstate or foreign commerce, deliver,

receive, carry, transport, ship, purchase,

or sell, or attempt any of the same, any

threatened or endangered marine

mammal species acquired under this

subpart except with the prior approval

of the Office Director and subject to any

conditions the Office Director may

prescribe.

3. Upon request by the Office

Director, the permit holder shall allow

any employee of NOAA or any other

person designated by the Office Director

to inspect or observe the permit holder’s

records, facilities, marine mammals,

marine mammal parts, and activities,

and shall provide all additional

information related to any inspection.

4. If activities authorized under a

special exception permit have adverse

unforeseen effects on the ecosystem of

which marine mammals are a part, the

permit holder must suspend permitted

activities and notify the Regional

Director, and, if marine mammals are

involved, the Office Director, of the

circumstances and any relevant

observations and recommendations. The

permit holder shall not continue such

permitted activities until specifically

authorized by the Regional Director or,

if marine mammals are involved, the

Office Director.

5. The Permit holder must

immediately cease all permitted

activities if so required by the Office

Director on the basis of new information

that demonstrates that the permitted

activities may have an adverse effect on

individual marine mammals, on the

species or stock, or on the marine

ecosystem, that was not anticipated at

the time of permit issuance. Permitted

activities may be resumed by the permit

holder only upon specific authorization

by the Office Director, and subject to

any terms or conditions that the Office

Director determines necessary,

consistent with the provisions of 216.35.

6. The permit holder shall participate

in a cooperative endangered and

threatened marine mammal breeding

program if requested by the Office

Director.

7. When animal-specific information

for live import or capture is not

available at the time of permit issuance,

the permit holder must request

authorization by the Office Director

prior to importing or initiating a capture

activity for long-term or permanent

captive maintenance (i.e., other than

short-term capture and release) of a

living marine mammal. The permit

holder must:

i. Request authorization to import or

capture at least 30 days prior to the

proposed importation or capture date;

ii. Provide the proposed dates and, for

imports, country of origin, port of entry,

description of the marine mammals to

be imported, and, for captures, the

location of the capture and associated

taking;

iii. Identify the proposed method,

including, but not limited to, a detailed

description of the containers/devices to

be used and any special care required,

modes (i.e., aircraft, truck, other),

duration (including any transfer points),

and date of transport, and the attending

veterinarian, or authorized support

personnel of the permit holder

knowledgeable in the area of marine

mammal care for the species concerned,

who will accompany the marine

mammal; and

iv. Provide a license and or

registration issued by the Animal and

Plant Health Inspection Service; a

certification, to the satisfaction of the

Office Director, that all applicable

standards under the Animal Welfare Act

will be complied with, and that any

violations of those standards have been

resolved and any required corrective

actions taken, or will be within a period

specified by the Office Director; and a

certification from the responsible

veterinarian that the transport will be

conducted in compliance with the

applicable standards of the Animal

Welfare Act.

Reporting

1. Annual reports. All permit holders

shall file written annual reports with the

Office Director. Annual reports shall

provide information requested by the

Office Director, and shall be filed on the

date set forth in the permit. At the

discretion of the Office Director, the

reporting deadline may coincide with

the end of the permit holder’s fiscal year

or research season.

2. Special reports. Special reports

include but are not limited to:

a. Live captures. Where the permit

authorizes a capture from the wild, the

permit holder shall submit a written live

capture report to the Office Director

within 30 days of capture. The report

shall set forth the time and specific

location (i.e., latitude/longitude) of the

capture, the number of marine mammals

chased or detained incidental to
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21931

capture, and any deaths, injuries or

complications that arose in connection

with capture. For each marine mammal

listed, the report must set forth the

animal’s size, age, sex, and reproductive

condition.

b. Lethal take. Where a lethal take is

authorized under the permit, the permit

holder shall submit a written report to

the Office Director within 30 days of the

authorized lethal take. Where an actual

or presumed lethal take occurs

inadvertent or incidental to permitted

activities, the permit holder shall notify

the Office Director within 12 hours of

the lethal take, or within 12 hours of

return to port if the taking occurred at

sea. This lethal take report or

notification, as applicable, shall set

forth the date, time, location, number,

and, to the extent possible, age/size, sex,

and reproductive condition of each

animal killed. For inadvertent or

incidental mortalities, notification shall

also include the circumstances

accompanying the incident and all

actions taken to reduce the potential for

future occurrences. A necropsy must be

conducted and a report submitted if

required by the Office Director.

c. Initial importation of marine

mammal parts. Within 30 days of the

initial importation of any marine

mammal part, the permit holder shall

submit a written report to the Office

Director. The report shall include a

description of the part and the unique

number assigned to the part.

d. Transfer, export or re-importation

of marine mammal parts. The permit

holder shall provide written notification

to the Regional Director within 30 days

after any transfer, export, or re-import of

a marine mammal part. Notification

shall include: A description of the part

and unique number; the person to

whom the part was transferred, exported

or reimported and, if applicable, the

recipient’s permit number; the purpose

of the transfer, export or reimport; and,

for transfers, certification that the

recipient has agreed to comply with the

requirements of § 216.37(a) for

subsequent transfers.

e. Other. If the permit holder observes

an unexpected event that may pose a

significant adverse affect upon the

health or welfare of a living marine

mammal species subject to the permit,

or the marine ecosystem of which they

are a part, the permit holder shall

submit a brief written report to the

Office Director describing the

circumstances concerned and all

relevant observations or

recommendations.

Additional Scientific Research and

Enhancement Conditions and Reporting

Requirements

Conditions

In addition to those conditions

detailed above, scientific research and

enhancement permits are subject to the

following conditions:

1. Unless approved by the Office

Director, the PI and co-investigators

identified in the permit shall not be

changed. A request to change a coinvestigator listed under the permit

must be submitted by the permit holder

and include a description of the activity

to be conducted by the proposed coinvestigator, the manner in which such

activity is a part of the permitted

activity, and information regarding the

proposed co-investigator equivalent to

that required for the PI in an initial

application.

2. The transfer and transport of

marine mammals held for purposes of

scientific research or enhancement must

be authorized by NMFS.

Reporting

In addition to the reporting

requirements detailed above, scientific

research and enhancement permits are

subject to the following reporting

requirements:

1. Annual reports. For scientific

research and enhancement permits, the

annual report also shall include the

following information:

a. To the extent practicable, for each

marine mammal taken, imported,

exported, or otherwise affected pursuant

to permitted activities: The species, age,

size, sex, and reproductive condition of

the animal; the date, location, and

manner of taking, import, or export; and

for tagged animals, the dates each

animal was tagged and tracked;

b. For each marine mammal part

taken, imported, exported or otherwise

affected pursuant to permitted activities,

a description of the part and its assigned

identification number;

c. The personnel and vessels involved

in the conduct of the permitted research

or enhancement and their respective

functions;

d. For each marine mammal placed on

public display: The name and location

of the display facility; and the number

of days the animal was displayed; and

e. A summary of all research and

enhancement activities conducted

during the past year.

2. Final reports. Scientific research

and enhancement permit holders shall

submit a final report to the Office

Director within 180 days of the last

annual report. The final report shall

include:

a. A summary of all research or

enhancement objectives, hypotheses,

and testing (including methodology).

b. A summary of results and the

manner in which such results relate to

the research or enhancement objectives;

c. Where the authorized take, import,

export or other activity involves a

species or stock designated, or proposed

to be designated, as depleted,

endangered or threatened, an

assessment of whether and how the

scientific research or enhancement

activity contributed to the achievement

of any recovery objectives established

for the species or stock.

d. For scientific research: An

indication of where and when the

research findings will be published or

otherwise made available to the public

or scientific community;

e. For enhancement: A description of

the manner in which the enhancement

program contributed significantly to

maintaining or increasing distribution

or abundance, enhanced the health or

welfare of the species or stock, or was

necessary to ensure the survival or

recovery of the affected species or stock

in the wild; and an assessment of the

need for additional enhancement, along

with specific recommendations;

f. Where marine mammals designated

as depleted, endangered, or threatened

are held captive under an enhancement

permit, the report shall describe the

manner in which the captive

maintenance has contributed directly to

the survival or recovery of the species

or stock; and

g. A description of the disposition of

any marine mammal parts, including an

identification of the part as required in

§ 216.37(a)(4) and the manner of

disposition.

3. Special reports. Information on

marine mammals held captive must be

submitted for purposes of the Marine

Mammal Inventory. Such information

includes animal-specific data when

animals are initially obtained, and

subsequent updates to be submitted for

any changes in the captive holding

status (i.e., animal identification, sex,

estimated or actual birth date, date of

acquisition or disposition by the permit

holder, source of acquisition including

location of the take from the wild if

applicable, name of recipient if animal

is transferred, notation if animal was

acquired as the result of a stranding,

date and cause of death, and prior

notification of any sale, purchase,

export, or transport). At the request of

the Office Director, a necropsy report

shall be submitted following report of a

death.
21932 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

Classification

NMFS prepared an Environmental

Assessment (EA) for the 1993 proposed

rule and concluded that this final rule

will not significantly affect the human

environment. Therefore, preparation of

an Environmental Impact Statement on

this action is not required by section

102(2) of NEPA or its implementing

regulations. Copies of the EA remain

available on request (see ADDRESSES).

NEPA requirements as they pertain to

individual permits that may be issued

under these proposed regulations will

be addressed on a case-by-case basis.

This final rule has been determined to

be not significant for purposes of E.O.

12866 and is consistent with the

President’s Regulatory Reform Initiative

to reduce regulatory burden on the

public. This rule clarifies current

permitting procedures that were found

not significant during the proposed

stage.

In accordance with the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.), an

Initial Regulatory Flexibility Analysis

(IRFA) was prepared and NMFS

solicited comments in the proposed rule

on the economic impacts to small

business entities (available upon request

(see ADDRESSES). The IRFA determined

that the projected economic impact of

the proposed revisions on affected small

business entities would be primarily

administrative, a combination of

paperwork burden costs, permit fees

(some of which would be greater than

the fees under current permit

regulations), and the proposed

requirement of a surety bond for the

care, maintenance, and disposition of

captive marine mammals. NMFS

believed that it was unlikely that

significant economic impact would

result from the requirements of the

proposed regulations beyond the

economic impacts associated with

paperwork requirements, associated

permit administration, and similar

requirements imposed under existing

regulations. However, sufficient

financial and economic data was not

available for NMFS to conduct an indepth economic analysis, particularly in

regards to the permit fees and surety

bond requirement. NMFS sought

comments on the anticipated economic

effects during the public comment

period. The comments submitted in

response to this request addressed

public display activities exclusively,

which have been eliminated from this

rule.

Due to statutory changes made by

Congress in the 1994 Amendments,

significant portions of the proposed rule

have been eliminated, including the

collection of permit fees and the

proposed requirement for surety bonds.

In addition, activities involving the

issuance of permits for purposes of

public display were significantly

reduced by the 1994 Amendments,

further reducing any economic impact

associated with paperwork costs

contained in this final rule.

As a result, the impact of this final

rule on small business entities is

primarily in the form of paperwork

burdens. Paperwork requirements

include permit applications and reports,

which may be annual, special, and/or

final. The projected economic impact on

small business entities as a result of the

paperwork requirements was estimated

in the IRFA as a total of $123,260

annually for a universe of 462 entities,

or about $267.00 per entity, an amount

not significant for purposes of the

Regulatory Flexibility Act. Accordingly,

the Assistant General Counsel for

Legislation and Regulation of the

Department of Commerce certified to

the Chief Counsel for Advocacy of the

Small Business Administration that this

rule would not have a significant

economic impact on a substantial

number of small entities. As a result, a

Final Regulatory Flexibility Analysis

was not prepared.

This rule contains collections of

information subject to the Paperwork

Reduction Act. The collection of this

information has been approved by the

Office of Management and Budget for

special exception permits, OMB Control

Number 0648–0084. The public burden

for collection of this information is

estimated to average 29 hours per

response for permit applications and

major amendment requests, 3 hours for

minor amendments and authorization

requests, and an average of 8 hours per

response for various reporting

requirements that range from 12 hours

for scientific research annual reports to

2 hours for necropsies.

Notwithstanding any other provision

of law, no person is required to respond

to nor shall a person be subject to a

penalty for failure to comply with a

collection of information subject to the

requirements of the Paperwork

Reduction Act unless that collection of

information displays a currently valid

OMB Control Number.

NMFS has determined that these final

regulations do not directly affect the

coastal zone of any state with an

approved coastal zone management

program.

Under NOAA Administrative Order

205–11, 7.01, dated December 17, 1990,

the Under Secretary for Oceans and

Atmosphere has delegated to the

Assistant Administrator for Fisheries,

NOAA, the authority to sign material for

publication in the Federal Register.

List of Subjects

15 CFR Part 902

Reporting and recordkeeping

requirements.

50 CFR Part 216

Administrative practice and

procedure, Exports, Imports, Indians,

Marine mammals, Penalties, Reporting

and recordkeeping requirements,

Transportation.

50 CFR Part 222

Administrative practice and

procedure, Endangered and threatened

species, Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Dated: May 6, 1996.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For reasons set out in the preamble,

15 CFR chapter IX and, under the

authority of 16 U.S.C. 1361 et seq., 50

CFR chapter II are amended as follows:

15 CFR CHAPTER IX

PART 902—NOAA INFORMATION

COLLECTION REQUIREMENTS UNDER

THE PAPERWORK REDUCTION ACT:

OMB CONTROL NUMBERS

1. The authority citation for part 902

continues to read as follows:

Authority: 44 U.S.C. 3501 et seq.

2. In § 902.1, paragraph (b) the table

is amended by removing in the left

column under 50 CFR, the entries

‘‘216.24(d)’’, ‘‘216.31’’, and ‘‘222.23’’,

and in the right column, in

corresponding positions, the control

numbers; and by adding, in numerical

order, the following entries to read as

follows:

§ 902.1 OMB control numbers assigned

pursuant to the Paperwork Reduction Act.

* * * * *

(b) * * *

CFR part or section where

the information collection

requirement is located

Current OMB

control number

(all numbers

begin with

0648–)

* * * * *

50 CFR:

* * * * *

216.24(d) ...................... –0099 and –0217

* * * * *

216.27 ........................... –0084

216.37 ........................... –0084
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21933

CFR part or section where

the information collection

requirement is located

Current OMB

control number

(all numbers

begin with

0648–)

216.38 ........................... –0084

216.39 ........................... –0084

216.41 ........................... –0084

* * * * *

50 CFR CHAPTER II

PART 216—REGULATIONS

GOVERNING THE TAKING AND

IMPORTING OF MARINE MAMMALS

3. The authority citation for part 216

continues to read as follows:

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

otherwise noted.

4. In § 216.3, definitions for ‘‘Coinvestigator’’, ‘‘Custody’’, ‘‘Facility’’,

‘‘Humane’’, ‘‘Intrusive research’’,

‘‘Principal investigator’’, ‘‘Public

display’’, and ‘‘Rehabilitation’’ are

added in alphabetical order, and the

definition of ‘‘Soft part’’ is revised to

read as follows:

§ 216.3 Definitions.

* * * * *

Co-investigator means the on-site

representative of a principal

investigator.

* * * * *

Custody means holding a live marine

mammal pursuant to the conditional

authority granted under the MMPA, and

the responsibility therein for captive

maintenance of the marine mammal.

* * * * *

Facility means, in the context specific

to captive marine mammals,: (1) One or

more permanent primary enclosures

used to hold marine mammals captive

(i.e., pools, lagoons) and associated

infrastructure (i.e., equipment and

supplies necessary for the care and

maintenance of marine mammals)

where these enclosures are either

located within the boundaries of a

single contiguous parcel of land and

water, or are grouped together within

the same general area within which

enclosure-to-enclosure transport is

expected to be completed in less than

one hour; or

(2) A traveling display/exhibit, where

the enclosure(s) and associated

infrastructure is transported together

with the marine mammals.

* * * * *

Humane means the method of taking,

import, export, or other activity which

involves the least possible degree of

pain and suffering practicable to the

animal involved.

* * * * *

Intrusive research means a procedure

conducted for bona fide scientific

research involving: A break in or cutting

of the skin or equivalent, insertion of an

instrument or material into an orifice,

introduction of a substance or object

into the animal’s immediate

environment that is likely either to be

ingested or to contact and directly affect

animal tissues (i.e., chemical

substances), or a stimulus directed at

animals that may involve a risk to

health or welfare or that may have an

impact on normal function or behavior

(i.e., audio broadcasts directed at

animals that may affect behavior). For

captive animals, this definition does not

include:

(1) A procedure conducted by the

professional staff of the holding facility

or an attending veterinarian for

purposes of animal husbandry, care,

maintenance, or treatment, or a routine

medical procedure that, in the

reasonable judgment of the attending

veterinarian, would not constitute a risk

to the health or welfare of the captive

animal; or

(2) A procedure involving either the

introduction of a substance or object

(i.e., as described in this definition) or

a stimulus directed at animals that, in

the reasonable judgment of the

attending veterinarian, would not

involve a risk to the health or welfare

of the captive animal.

* * * * *

Principal investigator means the

individual primarily responsible for the

taking, importation, export, and any

related activities conducted under a

permit issued for scientific research or

enhancement purposes.

Public display means an activity that

provides opportunities for the public to

view living marine mammals at a

facility holding marine mammals

captive.

* * * * *

Rehabilitation means treatment of

beached and stranded marine mammals

taken under section 109(h)(1) of the

MMPA or imported under section

109(h)(2) of the MMPA, with the intent

of restoring the marine mammal’s health

and, if necessary, behavioral patterns.

* * * * *

Soft part means any marine mammal

part that is not a hard part. Soft parts do

not include urine or fecal material.

* * * * *

5. In § 216.13, the section heading is

revised and paragraph (d) is added to

read as follows:

§ 216.13 Prohibited uses, possession,

transportation, sales, and permits.

* * * * *

(d) Any person to violate any term,

condition, or restriction of any permit

issued by the Secretary.

6. In § 216.26, the section heading and

paragraphs (b), (c), and (d) are revised

and the introductory text to the section

and paragraph (e) are added to read as

follows:

§ 216.26 Collection of certain marine

mammal parts without prior authorization.

Notwithstanding any other provision

of this subpart:

* * * * *

(b) Notwithstanding the provisions of

subpart D, soft parts that are sloughed,

excreted, or discharged naturally by a

living marine mammal in the wild may

be collected or imported for bona fide

scientific research and enhancement,

provided that collection does not

involve the taking of a living marine

mammal in the wild.

(c) Any marine mammal part

collected under paragraph (a) of this

section or any marine mammal part

collected and imported under paragraph

(b) of this section must be registered and

identified, and may be transferred or

otherwise possessed, in accordance with

§ 216.22(c). In registering a marine

mammal part collected or imported

under paragraph (b) of this section, the

person who collected or imported the

part must also state the scientific

research or enhancement purpose for

which the part was collected or

imported.

(d) No person may purchase, sell or

trade for commercial purposes any

marine mammal part collected or

imported under this section.

(e) The export of parts collected

without prior authorization under

paragraph (b) of this section may occur

if consistent with the provisions at

§ 216.37(d) under subpart D.

7. In subpart C, § 216.27 is added to

read as follows:

§ 216.27 Release, non-releasability, and

disposition under special exception permits

for rehabilitated marine mammals.

(a) Release requirements. (1) Any

marine mammal held for rehabilitation

must be released within six months of

capture or import unless the attending

veterinarian determines that:

(i) The marine mammal might

adversely affect marine mammals in the

wild;

(ii) Release of the marine mammal to

the wild will not likely be successful

given the physical condition and

behavior of the marine mammal; or

(iii) More time is needed to determine

whether the release of the marine

mammal to the wild will likely be

successful. Releasability must be
21934 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

reevaluated at intervals of no less than

six months until 24 months from

capture or import, at which time there

will be a rebuttable presumption that

release into the wild is not feasible.

(2) The custodian of the rehabilitated

marine mammal shall provide written

notification prior to any release into the

wild.

(i) Notification shall be provided to:

(A) The NMFS Regional Director at

least 15 days in advance of releasing any

beached or stranded marine mammal,

unless advance notice is waived in

writing by the Regional Director; or

(B) The Office Director at least 30

days in advance of releasing any

imported marine mammal.

(ii) Notification shall include the

following:

(A) A description of the marine

mammal, including its physical

condition and estimated age;

(B) The date and location of release;

and

(C) The method and duration of

transport prior to release.

(3) The Regional Director, or the

Office Director as appropriate, may:

(i) Require additional information

prior to any release;

(ii) Change the date or location of

release, or the method or duration of

transport prior to release;

(iii) Impose additional conditions to

improve the likelihood of success or to

monitor the success of the release; or

(iv) Require other disposition of the

marine mammal.

(4) All marine mammals must be

released near wild populations of the

same species, and stock if known,

unless a waiver is granted by the

Regional Director or the Office Director.

(5) All marine mammals released

must be tagged or marked in a manner

acceptable to the Regional Director or

the Office Director. The tag number or

description of the marking must be

reported to the Regional Director or

Office Director following release.

(b) Non-releasability and postponed

determinations. (1) The attending

veterinarian shall provide the Regional

Director or Office Director with a

written report setting forth the basis of

any determination under paragraphs

(a)(1)(i) through (iii) of this section.

(2) Upon receipt of a report under

paragraph (b)(1) of this section, the

Regional Director or Office Director, in

their sole discretion, may:

(i) Order the release of the marine

mammal;

(ii) Order continued rehabilitation for

an additional 6 months; or

(iii) Order other disposition as

authorized.

(3) No later than 30 days after a

marine mammal is determined

unreleasable in accordance with

paragraphs (a)(1)(i) through (iii) of this

section, the person with authorized

custody must:

(i) Request authorization to retain or

transfer custody of the marine mammal

in accordance with paragraph (c) of this

section, or;

(ii) Humanely euthanize the marine

mammal or arrange any other

disposition of the marine mammal

authorized by the Regional Director or

Office Director.

(4) Notwithstanding any of the

provisions of this section, the Office

Director may require use of a

rehabilitated marine mammal for any

activity authorized under subpart D in

lieu of animals taken from the wild.

(5) Any rehabilitated beached or

stranded marine mammal placed on

public display following a nonreleasability determination under

paragraph (a)(1) of this section and

pending disposition under paragraph (c)

of this section, or any marine mammal

imported for medical treatment

otherwise unavailable and placed on

public display pending disposition after

such medical treatment is concluded,

must be held in captive maintenance

consistent with all requirements for

public display.

(c) Disposition for a special exception

purpose. (1) Upon receipt of an

authorization request made under

paragraph (b)(3)(i) of this section, or

release notification under (a)(2), the

Office Director may authorize the

retention or transfer of custody of the

marine mammal for a special exception

purpose authorized under subpart D.

(2) The Office Director will first

consider requests from a person

authorized to hold the marine mammal

for rehabilitation. The Office Director

may authorize such person to retain or

transfer custody of the marine mammal

for scientific research, enhancement, or

public display purposes.

(3) The Office Director may authorize

retention or transfer of custody of the

marine mammal only if:

(i) Documentation has been submitted

to the Office Director that the person

retaining the subject animal or the

person receiving custody of the subject

animal by transfer, hereinafter referred

to as the recipient, complies with public

display requirements of 16 U.S.C.

1374(c)(2)(A) or, for purposes of

scientific research and enhancement,

holds an applicable permit, or an

application for such a special exception

permit under § 216.33 or a request for a

major amendment under § 216.39 has

been submitted to the Office Director

and has been found complete;

(ii) The recipient agrees to hold the

marine mammal in conformance with

all applicable requirements and

standards; and

(iii) The recipient acknowledges that

the marine mammal is subject to seizure

by the Office Director:

(A) If, at any time pending issuance of

the major amendment or permit, the

Office Director determines that seizure

is necessary in the interest of the health

or welfare of the marine mammal;

(B) If the major amendment or permit

is denied; or

(C) If the recipient is issued a notice

of violation and assessment, or is

subject to permit sanctions, in

accordance with 15 CFR part 904.

(4) There shall be no remuneration

associated with any transfer, provided

that, the transferee may reimburse the

transferor for any and all costs

associated with the rehabilitation and

transport of the marine mammal.

(5) Marine mammals undergoing

rehabilitation or pending disposition

under this section shall not be subject

to public display, unless such activities

are specifically authorized by the

Regional Director or the Office Director,

and conducted consistent with the

requirements applicable to public

display. Such marine mammals shall

not be trained for performance or be

included in any aspect of a program

involving interaction with the public;

and

(6) Marine mammals undergoing

rehabilitation shall not be subject to

intrusive research, unless such activities

are specifically authorized by the Office

Director in consultation with the Marine

Mammal Commission and its

Committee of Scientific Advisors on

Marine Mammals, and are conducted

pursuant to a scientific research permit.

(d) Reporting. In addition to the report

required under § 216.22(b), the person

authorized to hold marine mammals for

rehabilitation must submit reports to the

Regional Director or Office Director

regarding release or other disposition.

These reports must be provided in the

form and frequency specified by the

Regional Director or Office Director.

8. In subpart D, §§ 216.31 through

216.34 are revised; §§ 216.35 through

216.44 are added; and § 216.30 and

§§ 216.46 through 216.49 are added and

reserved to read as follows:

Subpart D—Special Exception Permits

216.30 [Reserved]

216.31 Definitions.

216.32 Scope.

216.33 Permit application submission,

review, and decision procedures.

216.34 Issuance criteria.

216.35 Permit restrictions.

216.36 Permit conditions.
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21935

216.37 Marine mammal parts.

216.38 Reporting.

216.39 Permit amendments.

216.40 Penalties and permit sanctions.

216.41 Permits for scientific research and

enhancement.

216.42 Photography. [Reserved]

216.43 Public display. [Reserved]

216.44 Applicability/transition.

216.45 General authorization.

216.46–216.49 [Reserved]

§ 216.30 [Reserved]

§ 216.31 Definitions.

For the purpose of this subpart, the

definitions set forth in 50 CFR part 217

shall apply to all threatened and

endangered marine mammals, unless a

more restrictive definition exists under

the MMPA or part 216.

§ 216.32 Scope.

The regulations of this subpart apply

to:

(a) All marine mammals and marine

mammal parts taken or born in captivity

after December 20, 1972; and

(b) All marine mammals and marine

mammal parts that are listed as

threatened or endangered under the

ESA.

§ 216.33 Permit application submission,

review, and decision procedures.

(a) Application submission. Persons

seeking a special exemption permit

under this subpart must submit an

application to the Office Director. The

application must be signed by the

applicant, and provide in a properly

formatted manner all information

necessary to process the application.

Written instructions addressing

information requirements and

formatting may be obtained from the

Office Director upon request.

(b) Applications to export living

marine mammals. For applicants

seeking a special exception permit to

export living marine mammals, the

application must:

(1) Be submitted through the

Convention on International Trade in

Endangered Fauna and Flora

management authority of the foreign

government or, if different, the

appropriate agency or agencies of the

foreign government that exercises

oversight over marine mammals.

(2) Include a certification from the

foreign government that:

(i) The information set forth in the

application is accurate;

(ii) The laws and regulations of the

foreign governmentinvolved allow

enforcement of the terms and conditions

of the permit, and that the foreign

government will enforce all terms and

conditions; and

(iii) The foreign government involved

will afford comity to any permit

amendment, modification, suspension

or revocation decision.

(c) Initial review. (1) NMFS will notify

the applicant of receipt of the

application.

(2) During the initial review, the

Office Director will determine:

(i) Whether the application is

complete.

(ii) Whether the proposed activity is

for purposes authorized under this

subpart.

(iii) If the proposed activity is for

enhancement purposes, whether the

species or stock identified in the

application is in need of enhancement

for its survival or recovery and whether

the proposed activity will likely succeed

in its objectives.

(iv) Whether the activities proposed

are to be conducted consistent with the

permit restrictions and permit specific

conditions as described in § 216.35 and

§ 216.36(a).

(v) Whether sufficient information is

included regarding the environmental

impact of the proposed activity to

enable the Office Director:

(A) To make an initial determination

under the National Environmental

Policy Act (NEPA) as to whether the

proposed activity is categorically

excluded from preparation of further

environmental documentation, or

whether the preparation of an

environmental assessment (EA) or

environmental impact statement (EIS) is

appropriate or necessary; and

(B) To prepare an EA or EIS if an

initial determination is made by the

Office Director that the activity

proposed is not categorically excluded

from such requirements.

(3) The Office Director may consult

with the Marine Mammal Commission

(Commission) and its Committee of

Scientific Advisors on Marine Mammals

(Committee) in making these initial, and

any subsequent, determinations.

(4) Incomplete applications will be

returned with explanation. If the

applicant fails to resubmit a complete

application or correct the identified

deficiencies within 60 days, the

application will be deemed withdrawn.

Applications that propose activities

inconsistent with this subpart will be

returned with explanation, and will not

be considered further.

(d) Notice of receipt and application

review. (1) Upon receipt of a valid,

complete application, and the

preparation of any NEPA

documentation that has been

determined initially to be required, the

Office Director will publish a notice of

receipt in the Federal Register. The

notice will:

(i) Summarize the application,

including:

(A) The purpose of the request;

(B) The species and number of marine

mammals;

(C) The type and manner of special

exception activity proposed;

(D) The location(s) in which the

marine mammals will be taken, from

which they will be imported, or to

which they will be exported; and

(E) The requested period of the

permit.

(ii) List where the application is

available for review.

(iii) Invite interested parties to submit

written comments concerning the

application within 30 days of the date

of the notice.

(iv) Include a NEPA statement that an

initial determination has been made that

the activity proposed is categorically

excluded from the requirement to

prepare an EA or EIS, that an EA was

prepared resulting in a finding of no

significant impact, or that a final EIS has

been prepared and is available for

review.

(2) The Office Director will forward a

copy of the complete application to the

Commission for comment. If no

comments are received within 45 days

(or such longer time as the Office

Director may establish) the Office

Director will consider the Commission

to have no objection to issuing a permit.

(3) The Office Director may consult

with any other person, institution, or

agency concerning the application.

(4) Within 30 days of publication of

the notice of receipt in the Federal

Register, any interested party may

submit written comments or may

request a public hearing on the

application.

(5) If the Office Director deems it

advisable, the Office Director may hold

a public hearing within 60 days of

publication of the notice of receipt in

the Federal Register. Notice of the date,

time, and place of the public hearing

will be published in the Federal

Register not less than 15 days in

advance of the public hearing. Any

interested person may appear in person

or through representatives and may

submit any relevant material, data,

views, or comments. A summary record

of the hearing will be kept.

(6) The Office Director may extend the

period during which any interested

party may submit written comments.

Notice of the extension must be

published in the Federal Register

within 60 days of publication of the

notice of receipt in the Federal Register.
21936 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

(7) If, after publishing a notice of

receipt, the Office Director determines

on the basis of new information that an

EA or EIS must be prepared, the Office

Director must deny the permit unless an

EA is prepared with a finding of no

significant impact. If a permit is denied

under these circumstances the

application may be resubmitted with

information sufficient to prepare an EA

or EIS, and will be processed as a new

application.

(e) Issuance or denial procedures. (1)

Within 30 days of the close of the public

hearing or, if no public hearing is held,

within 30 days of the close of the public

comment period, the Office Director

will issue or deny a special exception

permit.

(2) The decision to issue or deny a

permit will be based upon:

(i) All relevant issuance criteria set

forth at § 216.34;

(ii) All purpose-specific issuance

criteria as appropriate set forth at

§ 216.41, § 216.42, and § 216.43;

(iii) All comments received or views

solicited on the permit application; and

(iv) Any other information or data that

the Office Director deems relevant.

(3) If the permit is issued, upon

receipt, the holder must date and sign

the permit, and return a copy of the

original to the Office Director. The

permit shall be effective upon the

permit holder’s signing of the permit. In

signing the permit, the holder:

(i) Agrees to abide by all terms and

conditions set forth in the permit, and

all restrictions and relevant regulations

under this subpart; and

(ii) Acknowledges that the authority

to conduct certain activities specified in

the permit is conditional and subject to

authorization by the Office Director.

(4) Notice of the decision of the Office

Director shall be published in the

Federal Register within 10 days after

the date of permit issuance or denial

and shall indicate where copies of the

permit, if issued, may be reviewed or

obtained. If the permit issued involves

marine mammals listed as endangered

or threatened under the ESA, the notice

shall include a finding by the Office

Director that the permit:

(i) Was applied for in good faith;

(ii) If exercised, will not operate to the

disadvantage of such endangered or

threatened species; and

(iii) Is consistent with the purposes

and policy set forth in section 2 of the

ESA.

(5) If the permit is denied, the Office

Director shall provide the applicant

with an explanation for the denial.

(6) Under the MMPA, the Office

Director may issue a permit for

scientific research before the end of the

public comment period if delaying

issuance could result in injury to a

species, stock, or individual, or in loss

of unique research opportunities. The

Office Director also may waive the 30-

day comment period required under the

ESA in an emergency situation where

the health or life of an endangered or

threatened marine mammal is

threatened and no reasonable alternative

is available. If a permit is issued under

these circumstances, notice of such

issuance before the end of the comment

period shall be published in the Federal

Register within 10 days of issuance.

(7) The applicant or any party

opposed to a permit may seek judicial

review of the terms and conditions of

such permit or of a decision to deny

such permit. Review may be obtained by

filing a petition for review with the

appropriate U.S. District Court as

provided for by law.

§ 216.34 Issuance criteria.

(a) For the Office Director to issue any

permit under this subpart, the applicant

must demonstrate that:

(1) The proposed activity is humane

and does not present any unnecessary

risks to the health and welfare of marine

mammals;

(2) The proposed activity is consistent

with all restrictions set forth at § 216.35

and any purpose-specific restrictions as

appropriate set forth at § 216.41,

§ 216.42, and § 216.43;

(3) The proposed activity, if it

involves endangered or threatened

marine mammals, will be conducted

consistent with the purposes and

policies set forth in section 2 of the

ESA;

(4) The proposed activity by itself or

in combination with other activities,

will not likely have a significant adverse

impact on the species or stock;

(5) Whether the applicant’s expertise,

facilities, and resources are adequate to

accomplish successfully the objectives

and activities stated in the application;

(6) If a live animal will be held

captive or transported, the applicant’s

qualifications, facilities, and resources

are adequate for the proper care and

maintenance of the marine mammal;

and

(7) Any requested import or export

will not likely result in the taking of

marine mammals or marine mammal

parts beyond those authorized by the

permit.

(b) The opinions or views of scientists

or other persons or organizations

knowledgeable of the marine mammals

that are the subject of the application or

of other matters germane to the

application will be considered.

§ 216.35 Permit restrictions.

The following restrictions shall apply

to all permits issued under this subpart:

(a) The taking, importation, export, or

other permitted activity involving

marine mammals and marine mammal

parts shall comply with the regulations

of this subpart.

(b) The maximum period of any

special exception permit issued, or any

major amendment granted, is five years

from the effective date of the permit or

major amendment. In accordance with

the provisions of § 216.39, the period of

a permit may be extended by a minor

amendment up to 12 months beyond

that established in the original permit.

(c) Except as provided for in

§ 216.41(c)(1)(v), marine mammals or

marine mammal parts imported under

the authority of a permit must be taken

or imported in a humane manner, and

in compliance with the Acts and any

applicable foreign law. Importation of

marine mammals and marine mammal

parts is subject to the provisions of 50

CFR part 14.

(d) The permit holder shall not take

from the wild any marine mammal

which at the time of taking is either

unweaned or less than eight months old,

or is a part of a mother-calf/pup pair,

unless such take is specifically

authorized in the conditions of the

special exception permit. Additionally,

the permit holder shall not import any

marine mammal that is pregnant or

lactating at the time of taking or import,

or is unweaned or less than eight

months old unless such import is

specifically authorized in the conditions

of the special exception permit.

(e) Captive marine mammals shall not

be released into the wild unless

specifically authorized by the Office

Director under a scientific research or

enhancement permit.

(f) The permit holder is responsible

for all activities of any individual who

is operating under the authority of the

permit;

(g) Individuals conducting activities

authorized under the permit must

possess qualifications commensurate

with their duties and responsibilities, or

must be under the direct supervision of

a person with such qualifications;

(h) Persons who require state or

Federal licenses to conduct activities

authorized under the permit must be

duly licensed when undertaking such

activities;

(i) Special exception permits are not

transferable or assignable to any other

person, and a permit holder may not

require any direct or indirect

compensation from another person in

return for requesting authorization for

such person to conduct the taking,
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21937

import, or export activities authorized

under the subject permit;

(j) The permit holder or designated

agent shall possess a copy of the permit

when engaged in a permitted activity,

when the marine mammal is in transit

incidental to such activity, and

whenever marine mammals or marine

mammal parts are in the possession of

the permit holder or agent. A copy of

the permit shall be affixed to any

container, package, enclosure, or other

means of containment, in which the

marine mammals or marine mammal

parts are placed for purposes of transit,

supervision, or care. For marine

mammals held captive and marine

mammal parts in storage, a copy of the

permit shall be kept on file in the

holding or storage facility.

§ 216.36 Permit conditions.

(a) Specific conditions. (1) Permits

issued under this subpart shall contain

specific terms and conditions deemed

appropriate by the Office Director,

including, but not limited to:

(i) The number and species of marine

mammals that are authorized to be

taken, imported, exported, or otherwise

affected;

(ii) The manner in which marine

mammals may be taken according to

type of take;

(iii) The location(s) in which the

marine mammals may be taken, from

which they may be imported, or to

which they may be exported, as

applicable, and, for endangered or

threatened marine mammal species to

be imported or exported, the port of

entry or export;

(iv) The period during which the

permit is valid.

(2) [Reserved]

(b) Other conditions. In addition to

the specific conditions imposed

pursuant to paragraph (a) of this section,

the Office Director shall specify any

other permit conditions deemed

appropriate.

§ 216.37 Marine mammal parts.

With respect to marine mammal parts

acquired by take or import authorized

under a permit issued under this

subpart:

(a) Marine mammal parts are

transferrable if:

(1) The person transferring the part

receives no remuneration of any kind

for the marine mammal part;

(2) The person receiving the marine

mammal part is:

(i) An employee of NMFS, the U.S.

Fish and Wildlife Service, or any other

governmental agency with conservation

and management responsibilities, who

receives the part in the course of their

official duties;

(ii) A holder of a special exception

permit which authorizes the take,

import, or other activity involving the

possession of a marine mammal part of

the same species as the subject part; or

(iii) In the case of marine mammal

parts from a species that is not depleted,

endangered or threatened, a person who

is authorized under section 112(c) of the

MMPA and subpart C of this part to take

or import marine mammals or marine

mammal parts;

(iv) Any other person specifically

authorized by the Regional Director,

consistent with the requirements of

paragraphs (a)(1) and (a)(3) through (6)

of this section.

(3) The marine mammal part is

transferred for the purpose of scientific

research, maintenance in a properly

curated, professionally accredited

scientific collection, or education,

provided that, for transfers for

educational purposes, the recipient is a

museum, educational institution or

equivalent that will ensure that the part

is available to the public as part of an

educational program;

(4) A unique number assigned by the

permit holder is marked on or affixed to

the marine mammal part or container;

(5) The person receiving the marine

mammal part agrees that, as a condition

of receipt, subsequent transfers may

only occur subject to the provisions of

paragraph (a) of this section; and

(6) Within 30 days after the transfer,

the person transferring the marine

mammal part notifies the Regional

Director of the transfer, including a

description of the part, the person to

whom the part was transferred, the

purpose of the transfer, certification that

the recipient has agreed to comply with

the requirements of paragraph (a) of this

section for subsequent transfers, and, if

applicable, the recipient’s permit

number.

(b) Marine mammal parts may be

loaned to another person for a purpose

described in paragraph (a)(3) of this

section and without the agreement and

notification required under paragraphs

(a)(5) and (6) of this section, if:

(1) A record of the loan is maintained;

and

(2) The loan is for not more than one

year. Loans for a period greater than 12

months, including loan extensions or

renewals, require notification of the

Regional Director under paragraph

(a)(6).

(c) Unless other disposition is

specified in the permit, a holder of a

special exception permit may retain

marine mammal parts not destroyed or

otherwise disposed of during or after a

scientific research or enhancement

activity, if such marine mammal parts

are:

(1) Maintained as part of a properly

curated, professionally accredited

collection; or

(2) Made available for purposes of

scientific research or enhancement at

the request of the Office Director.

(d) Marine mammal parts may be

exported and subsequently reimported

by a permit holder or subsequent

authorized recipient, for the purpose of

scientific research, maintenance in a

properly curated, professionally

accredited scientific collection, or

education, provided that:

(1) The permit holder or other person

receives no remuneration for the marine

mammal part;

(2) A unique number assigned by the

permit holder is marked on or affixed to

the marine mammal specimen or

container;

(3) The marine mammal part is

exported or reimported in compliance

with all applicable domestic and foreign

laws;

(4) If exported or reimported for

educational purposes, the recipient is a

museum, educational institution, or

equivalent that will ensure that the part

is available to the public as part of an

educational program; and

(5) Special reports are submitted

within 30 days after both export and

reimport as required by the Office

Director under § 216.38.

§ 216.38 Reporting.

All permit holders must submit

annual, final, and special reports in

accordance with the requirements

established in the permit, and any

reporting format established by the

Office Director.

§ 216.39 Permit amendments.

(a) General. Special exception permits

may be amended by the Office Director.

Major and minor amendments may be

made to permits in response to, or

independent of, a request from the

permit holder. Amendments must be

consistent with the Acts and comply

with the applicable provisions of this

subpart.

(1) A ‘‘major amendment’’ means any

change to the permit specific conditions

under § 216.36(a) regarding:

(i) The number and species of marine

mammals that are authorized to be

taken, imported, exported, or otherwise

affected;

(ii) The manner in which these

marine mammals may be taken,

imported, exported, or otherwise

affected, if the proposed change may

result in an increased level of take or

risk of adverse impact;
21938 Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations

(iii) The location(s) in which the

marine mammals may be taken, from

which they may be imported, and to

which they may be exported, as

applicable; and

(iv) The duration of the permit, if the

proposed extension would extend the

duration of the permit more than 12

months beyond that established in the

original permit.

(2) A ‘‘minor amendment’’ means any

amendment that does not constitute a

major amendment.

(b) Amendment requests and

proposals. (1) Requests by a permit

holder for an amendment must be

submitted in writing and include the

following:

(i) The purpose and nature of the

amendment;

(ii) Information, not previously

submitted as part of the permit

application or subsequent reports,

necessary to determine whether the

amendment satisfies all issuance criteria

set forth at § 216.34, and, as appropriate,

§ 216.41, § 216.42, and § 216.43.

(iii) Any additional information

required by the Office Director for

purposes of reviewing the proposed

amendment.

(2) If an amendment is proposed by

the Office Director, the permit holder

will be notified of the proposed

amendment, together with an

explanation.

(c) Review of proposed amendments.

(1) Major amendments. The provisions

of § 216.33(d) and (e) governing notice

of receipt, review and decision shall

apply to all proposed major

amendments.

(2) Minor amendments. (i) After

reviewing all appropriate information,

the Office Director will provide the

permit holder with written notice of the

decision on a proposed or requested

amendment, together with an

explanation for the decision.

(ii) If the minor amendment extends

the duration of the permit 12 months or

less from that established in the original

permit, notice of the minor amendment

will be published in the Federal

Register within 10 days from the date of

the Office Director’s decision.

(iii) A minor amendment will be

effective upon a final decision by the

Office Director.

§ 216.40 Penalties and permit sanctions.

(a) Any person who violates any

provision of this subpart or permit

issued thereunder is subject to civil and

criminal penalties, permit sanctions and

forfeiture as authorized under the Acts,

and 15 CFR part 904.

(b) All special exception permits are

subject to suspension, revocation,

modification and denial in accordance

with the provisions of subpart D of 15

CFR part 904.

§ 216.41 Permits for scientific research

and enhancement.

In addition to the requirements under

§ 216.33 through § 216.38, permits for

scientific research and enhancement are

governed by the following requirements:

(a) Applicant. (1) For each application

submitted under this section, the

applicant shall be the principal

investigator responsible for the overall

research or enhancement activity. If the

research or enhancement activity will

involve a periodic change in the

principal investigator or is otherwise

controlled by and dependent upon

another entity, the applicant may be the

institution, governmental entity, or

corporation responsible for supervision

of the principal investigator.

(2) For any scientific research

involving captive maintenance, the

application must include supporting

documentation from the person

responsible for the facility or other

temporary enclosure.

(b) Issuance Criteria. For the Office

Director to issue any scientific research

or enhancement permit, the applicant

must demonstrate that:

(1) The proposed activity furthers a

bona fide scientific or enhancement

purpose;

(2) If the lethal taking of marine

mammals is proposed:

(i) Non-lethal methods for conducting

the research are not feasible; and

(ii) For depleted, endangered, or

threatened species, the results will

directly benefit that species or stock, or

will fulfill a critically important

research need.

(3) Any permanent removal of a

marine mammal from the wild is

consistent with any applicable quota

established by the Office Director.

(4) The proposed research will not

likely have significant adverse effects on

any other component of the marine

ecosystem of which the affected species

or stock is a part.

(5) For species or stocks designated or

proposed to be designated as depleted,

or listed or proposed to be listed as

endangered or threatened:

(i) The proposed research cannot be

accomplished using a species or stock

that is not designated or proposed to be

designated as depleted, or listed or

proposed to be listed as threatened or

endangered;

(ii) The proposed research, by itself or

in combination with other activities will

not likely have a long-term direct or

indirect adverse impact on the species

or stock;

(iii) The proposed research will

either:

(A) Contribute to fulfilling a research

need or objective identified in a species

recovery or conservation plan, or if

there is no conservation or recovery

plan in place, a research need or

objective identified by the Office

Director in stock assessments

established under section 117 of the

MMPA;

(B) Contribute significantly to

understanding the basic biology or

ecology of the species or stock, or to

identifying, evaluating, or resolving

conservation problems for the species or

stock; or

(C) Contribute significantly to

fulfilling a critically important research

need.

(6) For proposed enhancement

activities:

(i) Only living marine mammals and

marine mammal parts necessary for

enhancement of the survival, recovery,

or propagation of the affected species or

stock may be taken, imported, exported,

or otherwise affected under the

authority of an enhancement permit.

Marine mammal parts would include in

this regard clinical specimens or other

biological samples required for the

conduct of breeding programs or the

diagnosis or treatment of disease.

(ii) The activity will likely contribute

significantly to maintaining or

increasing distribution or abundance,

enhancing the health or welfare of the

species or stock, or ensuring the

survival or recovery of the affected

species or stock in the wild.

(iii) The activity is consistent with:

(A) An approved conservation plan

developed under section 115(b) of the

MMPA or recovery plan developed

under section 4(f) of the ESA for the

species or stock; or

(B) If there is no conservation or

recovery plan, with the Office Director’s

evaluation of the actions required to

enhance the survival or recovery of the

species or stock in light of the factors

that would be addressed in a

conservation or recovery plan.

(iv) An enhancement permit may

authorize the captive maintenance of a

marine mammal from a threatened,

endangered, or depleted species or stock

only if the Office Director determines

that:

(A) The proposed captive

maintenance will likely contribute

directly to the survival or recovery of

the species or stock by maintaining a

viable gene pool, increasing

productivity, providing necessary

biological information, or establishing

animal reserves required to support

directly these objectives; and
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and Regulations 21939

(B) The expected benefit to the

species or stock outweighs the expected

benefits of alternatives that do not

require removal of marine mammals

from the wild.

(v) The Office Director may authorize

the public display of marine mammals

held under the authority of an

enhancement permit only if:

(A) The public display is incidental to

the authorized captive maintenance;

(B) The public display will not

interfere with the attainment of the

survival or recovery objectives;

(C) The marine mammals will be held

consistent with all requirements and

standards that are applicable to marine

mammals held under the authority of

the Acts and the Animal Welfare Act,

unless the Office Director determines

that an exception is necessary to

implement an essential enhancement

activity; and

(D) The marine mammals will be

excluded from any interactive program

and will not be trained for performance.

(vi) The Office Director may authorize

non-intrusive scientific research to be

conducted while a marine mammal is

held under the authority of an

enhancement permit, only if such

scientific research:

(A) Is incidental to the permitted

enhancement activities; and

(B) Will not interfere with the

attainment of the survival or recovery

objectives.

(c) Restrictions. (1) The following

restrictions apply to all scientific

research permits issued under this

subpart:

(i) Research activities must be

conducted in the manner authorized in

the permit.

(ii) Research results shall be

published or otherwise made available

to the scientific community in a

reasonable period of time.

(iii) Research activities must be

conducted under the direct supervision

of the principal investigator or a coinvestigator identified in the permit.

(iv) Personnel involved in research

activities shall be reasonable in number

and limited to:

(A) Individuals who perform a

function directly supportive of and

necessary to the permitted research

activity; and

(B) Support personnel included for

the purpose of training or as backup

personnel for persons described in

paragraph (c)(1)(iv)(A).

(v) Any marine mammal part

imported under the authority of a

scientific research permit must not have

been obtained as the result of a lethal

taking that would be inconsistent with

the Acts, unless authorized by the Office

Director.

(vi) Marine mammals held under a

permit for scientific research shall not

be placed on public display, included in

an interactive program or activity, or

trained for performance unless such

activities:

(A) Are necessary to address scientific

research objectives and have been

specifically authorized by the Office

Director under the scientific research

permit; and

(B) Are conducted incidental to and

do not in any way interfere with the

permitted scientific research; and

(C) Are conducted in a manner

consistent with provisions applicable to

public display, unless exceptions are

specifically authorized by the Office

Director.

(vii) Any activity conducted

incidental to the authorized scientific

research activity must not involve any

taking of marine mammals beyond what

is necessary to conduct the research

(i.e., educational and commercial

photography).

(2) Any marine mammal or progeny

held in captive maintenance under an

enhancement permit shall be returned

to its natural habitat as soon as feasible,

consistent with the terms of the

enhancement permit and the objectives

of an approved conservation or recovery

plan. In accordance with section 10(j) of

the ESA, the Office Director may

authorize the release of any population

of an endangered or threatened species

outside the current range of such

species if the Office Director determines

that such release will further the

conservation of such species.

§ 216.42 Photography. [Reserved]

§ 216.43 Public display. [Reserved]

§ 216.44 Applicability/transition.

(a) General. The regulations of this

subpart are applicable to all persons,

including persons holding permits or

other authorizing documents issued

before June 10, 1996, by NMFS for the

take, import, export, or conduct of any

otherwise prohibited activity involving

a marine mammal or marine mammal

part for special exception purposes.

(b) Scientific research. Any intrusive

research as defined in § 216.3, initiated

after June 10, 1996, must be authorized

under a scientific research permit.

Intrusive research authorized by the

Office Director to be conducted on

captive marine mammals held for public

display purposes prior to June 10, 1996,

must be authorized under a scientific

research permit one year after June 10,

1996.

* * * * *

§§ 216.46–216.49 [Reserved]

PART 222—ENDANGERED FISH OR

WILDLIFE

9. The authority citation for part 222

is revised to read as follows:

Authority: 16 U.S.C. 1531 et seq.

10. In § 222.23, the first sentence in

paragraph (b) is revised to read as

follows:

§ 222.23 Permits for scientific purposes or

to enhance the propagation or survival of

the affected endangered species.

* * * * *

(b) Application procedures. To obtain

such a permit, an application must be

made to the Director in accordance with

this subpart, except for marine mammal

permits which shall be issued in

accordance with the provisions of part

216, subpart D of this chapter, and sea

turtle permits which shall be issued in

accordance with part 220, subpart E of

this chapter.

* * * * *

[FR Doc. 96–11776 Filed 5–9–96; 8:45 am]

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