[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Rules and Regulations]
[Pages 21926-21939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11776]
[[Page 21925]]
_______________________________________________________________________
Part IX
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
15 CFR Part 902
50 CFR Parts 216 and 222
Reporting and Recordkeeping Requirements; Final Rule
Federal Register / Vol. 61, No. 92 / Friday, May 10, 1996 / Rules and
Regulations
[[Page 21926]]
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.
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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
[[Page 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 Secs. 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., Sec. 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 Sec. 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-in-trade'' 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 (Sec. 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
[[Page 21928]]
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 (Sec. 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 (Sec. 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 (Sec. 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 (Sec. 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 (Sec. 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 self-regulation. Accordingly, reference to education and
conservation programs has been eliminated from the definition.
Initial review process (Sec. 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 (Sec. 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-stop-shopping'', 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
(Sec. 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'' (Sec. 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 (Sec. 216.34(a)(4)).
Notarized copy (Sec. 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 (Sec. 216.37). A number of comments were critical
of the
[[Page 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 (Sec. 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 (Sec. 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 (Sec. 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 (Sec. 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
(Sec. 216.3).
Personnel experience and direct supervision (Secs. 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 co-investigator, 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
(Sec. 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 Sec. 216.3).
Prohibiting public display of marine mammals held for research
(Sec. 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
[[Page 21930]]
allow such activities, under appropriate conditions, to occur under a
scientific research permit.
Marketable products (Sec. 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,
non-statutory 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
[[Page 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 Sec. 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 co-investigator listed under the permit must be submitted
by the permit holder and include a description of the activity to be
conducted by the proposed co-investigator, 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
Sec. 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.
[[Page 21932]]
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 in-depth 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 Sec. 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:
Sec. 902.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) * * *
------------------------------------------------------------------------
CFR part or section where the
information collection requirement is Current OMB control number (all
located numbers begin with 0648-)
------------------------------------------------------------------------
* * * * *
50 CFR:
* * * * *
216.24(d)............................ -0099 and -0217
* * * * *
216.27............................... -0084
216.37............................... -0084
[[Page 21933]]
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 Sec. 216.3, definitions for ``Co-investigator'', ``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:
Sec. 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 Sec. 216.13, the section heading is revised and paragraph (d)
is added to read as follows:
Sec. 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 Sec. 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:
Sec. 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
Sec. 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 Sec. 216.37(d) under subpart D.
7. In subpart C, Sec. 216.27 is added to read as follows:
Sec. 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
[[Page 21934]]
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 non-releasability 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 Sec. 216.33 or a request for a major amendment
under Sec. 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
Sec. 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, Secs. 216.31 through 216.34 are revised;
Secs. 216.35 through 216.44 are added; and Sec. 216.30 and Secs. 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.
[[Page 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]
Sec. 216.30 [Reserved]
Sec. 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.
Sec. 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.
Sec. 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 Sec. 216.35 and Sec. 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.
[[Page 21936]]
(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 Sec. 216.34;
(ii) All purpose-specific issuance criteria as appropriate set
forth at Sec. 216.41, Sec. 216.42, and Sec. 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.
Sec. 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 Sec. 216.35 and any purpose-specific restrictions as
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 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.
Sec. 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
Sec. 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 Sec. 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,
[[Page 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.
Sec. 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.
Sec. 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 Sec. 216.38.
Sec. 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.
Sec. 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 Sec. 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;
[[Page 21938]]
(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 Sec. 216.34,
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 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 Sec. 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.
Sec. 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.
Sec. 216.41 Permits for scientific research and enhancement.
In addition to the requirements under Sec. 216.33 through
Sec. 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
[[Page 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 co-investigator
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.
Sec. 216.42 Photography. [Reserved]
Sec. 216.43 Public display. [Reserved]
Sec. 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
Sec. 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.
* * * * *
Secs. 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 Sec. 222.23, the first sentence in paragraph (b) is revised
to read as follows:
Sec. 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]
BILLING CODE 3510-22-W
