[Federal Register Volume 59, Number 190 (Monday, October 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24356]
[[Page Unknown]]
[Federal Register: October 3, 1994]
_______________________________________________________________________
Part III
Department of Commerce
_______________________________________________________________________
National Oceanic and Atmospheric Administration
_______________________________________________________________________
50 CFR Parts 215 and 216
General Authorization for Scientific Research; Final Rule
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Parts 215 and 216
[Docket No. 940840-4262; I.D. 081694C]
RIN 0648-AH20
General Authorization for Scientific Research
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Interim final rule; request for comments.
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SUMMARY: This interim final rule implements recent amendments to the
Marine Mammal Protection Act of 1972 (MMPA) by amending the regulations
implementing the MMPA to authorize, pursuant to a General Authorization
for Scientific Research, the harassment of marine mammals in the wild
for purposes of bona fide scientific research, that does not have the
potential to injure marine mammals (Level B harassment).
DATES: The interim rule is effective on October 3, 1994. Comments must
be postmarked or received by November 17, 1994.
ADDRESSES: Comments or requests for the Environmental Assessment (EA)
prepared for this action should be sent to Chief, Permits Division, F/
PR1, Office of Protected Resources, NMFS, 1335 East-West Highway,
Silver Spring, MD 20910-3226. Comments regarding the burden-hour
estimate or any other aspect of the collection-of-information
requirement contained in this rule should be sent to Ann D. Terbush at
the above address and to the Office of Management and Budget (OMB),
Attention: NOAA Desk Officer, Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Ann D. Terbush, (301) 713-2289.
SUPPLEMENTARY INFORMATION:
General Background and Statutory Information
Marine Mammal Protection Act
The MMPA (16 U.S.C. 1361 et seq.) places a moratorium on the taking
and importing of marine mammals by persons subject to U.S. jurisdiction
with limited exceptions. One exception is for the taking or importing
of marine mammals for purposes of scientific research. The MMPA
Amendments of 1994 (1994 Amendments), enacted on April 30, 1994 (P.L.
103-238), among other things, require that, within 120 days of
enactment, NMFS issue a General Authorization for Scientific Research
and implementing regulations allowing takings of marine mammals in the
wild for purposes of bona fide scientific research by no more than
Level B harassment (pursuit, torment, or annoyance of marine mammals
that does not have the potential to injure marine mammals).
The 120-day deadline requires that this General Authorization be
issued by interim final rule without prior notice and opportunity for
prior public comment. Comments on the General Authorization and
implementing regulations are invited and will be considered in issuing
a final rule.
Level B harassment is defined as any act of pursuit, torment, or
annoyance which has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering but does not have the potential to injure a
marine mammal or marine mammal stock in the wild. Level A harassment is
defined as any act which has the potential to injure a marine mammal or
marine mammal stock in the wild. In general, except for small take
authorizations for harassment under section 101(a)(5)(D) of the MMPA, a
permit is required to take by Level A harassment. And, a permit is also
required to hunt, capture, or kill marine mammals for the purposes of
scientific research, public display, or enhancing the survival or
recovery of a species or stock, or to take by Level B harassment for
photography for educational or commercial purposes.
Fur Seal Act
In proposed revised permit regulations published on October 14,
1993 (58 FR 53320), NMFS proposed consolidating three sets of permit
regulations that have been implemented under the MMPA, the Fur Seal Act
of 1966 (FSA) (16 U.S.C. 1151 et seq.), and the Endangered Species Act
of 1973 (ESA) (16 U.S.C. 1531 et seq.). This interim final rule revises
the permit sections of the implementing regulations of the FSA (50 CFR
part 215) to reference MMPA permit regulations (50 CFR part 216,
subpart D) as the applicable regulations for the taking of North
Pacific fur seals for scientific research or exhibition purposes. The
FSA permit regulations are also revised to allow the taking of North
Pacific fur seals involving only Level B harassment for the purpose of
scientific research under this interim final rule. (Note: North Pacific
fur seals (Pribilof Island population) have been designated as depleted
under the MMPA.)
Collection of Certain Marine Mammal Parts
In enacting the 1994 Amendments it was the apparent intent of
Congress to allow under a General Authorization the conduct of
scientific research activities involving certain low-impact types of
taking of marine mammals in the wild, with the goal of making a permit
unnecessary for scientific research involving types of taking that do
not have the potential to injure marine mammals or marine mammal
stocks. NMFS believes that such types of low-impact taking include the
collection of tissues, fluids, or other marine mammal parts sloughed,
excreted, or otherwise discharged naturally by marine mammals in the
wild, where such collection may not necessarily involve the harassment
of living marine mammals in the wild. Accordingly, NMFS is amending
Sec. 216.26 of the implementing regulations (50 CFR part 216) to allow
for purposes of bona fide scientific research, without issuance of a
permit, the collection of any tissues, fluids or other marine mammal
parts naturally sloughed, excreted or otherwise discharged by a living
marine mammal in the wild. Section 216.26 is also amended to: (1)
Ensure that requirements for the registration, identification,
transfer, or other possession of such marine mammal parts are
consistent with those already established for parts salvaged from
beached or stranded marine mammals (Sec. 216.22(c)); (2) require that,
in registering such marine mammal parts, the person collecting the part
must also state the scientific research purpose for which the part was
collected; and (3) prohibit the sale or trade of any such marine mammal
part for commercial purposes.
Discussion of General Authorization and Implementing Regulations
The implementing regulations for the General Authorization are
organized into five parts: (1) The General Authorization and the types
of activities covered; (2) letter of intent requirements; (3)
procedures for confirming that the General Authorization applies or
notifying the applicant that a permit is required; (4) the terms and
conditions applicable to activities conducted under the General
Authorization, including reporting requirements; and (5) the
circumstances under which NMFS may suspend, revoke, or modify the
authority to conduct scientific research under the General
Authorization.
Scope
Activities Included Under the General Authorization
Research activities that are likely to involve only Level B
harassment of marine mammals, and therefore that may be conducted under
the General Authorization consistent with the requirements of these
regulations, include: Photo-identification studies; behavioral
observations; vessel surveys; and aerial surveys over water or land,
and over pinniped rookeries if flown at altitudes greater than 1,000 ft
(305 meters (m)). These activities are listed in Sec. 216.45(a)(3).
This list may be expanded as new information becomes available and NMFS
determines that other types of research activities are likely to
involve only Level B harassment. Comment is requested regarding what
other types of research activities are likely to involve only Level B
harassment (i.e., no potential to injure) and can be clearly and
uniquely categorized as such in the final rule.
The General Authorization also applies to persons issued a
scientific research permit under the ESA that authorizes the taking by
Level B harassment of marine mammals listed as threatened or
endangered. An ESA permit holder authorized to conduct Level B
harassment is not required to submit a separate letter of intent. Such
Level B activities are included under the MMPA General Authorization
for Scientific Research and no letter of confirmation is needed.
Activities Not Included Under the General Authorization
As stated in section 2(b) of the 1994 Amendments, ``Except as
otherwise expressly provided, nothing in this Act is intended to amend,
repeal, or otherwise affect any other provision of law.'' Thus, marine
mammals listed as endangered or threatened under the ESA may be taken
for purposes of scientific research only after issuance of a permit for
such activities pursuant to the ESA (50 CFR part 222). And, except for
Level B harassment, other types of taking of marine mammals listed as
threatened or endangered that are authorized under an ESA permit for
scientific research are not authorized under the General Authorization.
Research activities involving the harassment of marine mammals in
the wild that have the potential to injure a marine mammal (Level A
harassment) are not covered by the General Authorization. They may be
conducted only pursuant to a scientific research permit. Likewise,
activities that involve the hunting, capturing, or killing of marine
mammals for the purposes of scientific research, public display, or
enhancing the survival or recovery of a species or stock, or taking by
Level B harassment for photography for educational or commercial
purposes, are not covered by the General Authorization and require a
permit.
Although most population surveys are likely to involve only Level B
harassment or no harassment at all, pinniped rookeries are an area of
concern because many pinniped species stampede into the water when
startled or otherwise threatened by a potential predator or by human
activity. When a stampede occurs in a haulout area (in the non-
reproductive season), it generally does not involve a potential injury,
but in a rookery situation, a stampede has the potential to injure
pups. The 1,000 ft (305 m) threshold for aerial surveys over pinniped
rookeries serves as an objective standard that may be used to determine
whether such research may be conducted under the General Authorization
or may involve potential injury to marine mammals (i.e., Level A
harassment) and, therefore, require a permit. In this regard, NMFS is
interested in comments on whether different species-specific aerial
survey altitudes or methods associated with minimal disturbance have
been established definitively in the scientific literature.
In the interest of simplicity and predictability, the interim final
rule limits research activities that may be conducted under the General
Authorization to only those types listed in Sec. 216.45(a)(3). In
preparing this interim final rule, however, NMFS considered including
provisions that would have allowed research activities other than those
types listed in Sec. 216.45(a)(3) to be included under the General
Authorization; Provided, That in the letter of intent the applicant
described the activity and furnished supporting documentation
sufficient for NMFS to determine that the activity likely would involve
only Level B harassment. For example, although bleach marking of
pinnipeds in the wild is a type of research that could injure marine
mammals (Level A harassment), if the activity is being conducted by an
experienced researcher using only non-toxic bleaching agents and proven
direct application methods on a species for which there is an
established record of tolerance of such methods without any disturbance
with potential to injure (e.g., Northern elephant seals, Mirounga
angustirostris), NMFS, upon receipt of a letter of intent containing
sufficient documentation, could determine such activity likely would
involve only Level B harassment and that the activity could be
conducted under the General Authorization. NMFS is requesting comment
on whether the final rule should include such flexibility; i.e., allow
persons to conduct, under the General Authorization, a research
activity that has not been listed in the regulations as a type of
research likely to involve only Level B harassment, if sufficient
documentation is submitted to NMFS to make a determination that the
activity is bona fide scientific research and does not involve the
potential to injure marine mammals or marine mammal stocks.
Applicants
An applicant submitting a letter of intent to conduct scientific
research under the General Authorization must be the principal
investigator, or the appropriate institution, government entity, or
corporation responsible for the supervision of the principal
investigator. If the research involves co-investigators, a single
principal investigator, who will be primarily responsible for the
research to be conducted under the General Authorization, must submit
the letter of intent, with all co-investigators identified as such.
Identification of both principal and co-investigators ensures
accountability for activities conducted under the General
Authorization.
All persons conducting an activity under the authority of the
General Authorization must possess qualifications (e.g., education or
experience) commensurate with their duties and responsibilities, or
must be under the direct supervision of a person with such
qualifications. Applicants must enclose with the letter of intent,
curricula vitae for themselves and any co-investigators that may
conduct research activities under the General Authorization. NMFS will
consider this information in determining whether the research as
described in the letter of intent can be expected to be conducted in a
manner involving no more than Level B harassment of marine mammals or
marine mammal stocks.
Letter of Intent
Persons intending to conduct a scientific research activity of the
type listed in Sec. 216.45 (a)(3) under the General Authorization must
submit, at least 60 days before commencement of such research, a letter
of intent by certified return/receipt mail to the Chief, Permits
Division, F/PR1, Office of Protected Resources, NMFS, 1335 East-West
Highway, Silver Spring, MD 20910-3226. Persons issued an ESA scientific
research permit authorizing the take of marine mammals in the wild by
Level B harassment, however, need not submit a letter of intent. Those
Level B activities are covered by the General Authorization, and no
letter of confirmation is needed.
All letters of intent must include the name, address, telephone
number, qualifications, and experience of the applicant (i.e.,
principal investigator) and any co-investigator(s). Curricula vitae
must be provided for each, including a list of publications by such
investigator relevant to the objectives, methodology, or other aspects
of the proposed research. Each letter of intent must be signed, dated,
and include the certification statement specified at Sec. 216.45(b)(3).
Each letter of intent must include brief statements responsive to
the information requirements of section 104(c)(3)(C) of the MMPA: The
species or stocks of marine mammals (common and scientific names) that
are the subject of the scientific research and any other species or
stock of marine mammals that may be harassed during the conduct of the
research; the geographic location(s) in which the research is to be
conducted, e.g., geographic name or lat./long.; the period(s) of time
over which the research will be conducted (up to 5 years), including
the field season(s) for the research, if applicable; the purpose of the
research, including a description of how the proposed research
qualifies as bona fide research; and the methods to be used to conduct
the research.
Confirmation Letter or Notification of Permit Requirement
No later than 30 days after receipt of a letter of intent, NMFS
will issue a letter to the applicant either: Confirming that the
General Authorization applies, notifying the applicant that all or part
of the proposed research does not qualify for the General Authorization
and that a scientific research permit is required, or notifying the
applicant that the letter of intent was insufficient to determine
whether the General Authorization applies and identifying the
deficiencies to enable the applicant to revise and resubmit the letter.
The Marine Mammal Commission (MMC) and Committee of Scientific
Advisors were established under Title II of the MMPA to, among other
things, review applications for permits for the taking or import of
marine mammals and provide comment and recommendations to NMFS.
Although the 1994 Amendments do not provide for the involvement of
either the MMC or the Committee of Scientific Advisors in the General
Authorization for Scientific Research, a copy of each letter of intent
and NMFS' response will be forwarded to the MMC. This will allow the
MMC to review all research activities involving marine mammals,
including research conducted under the General Authorization.
Any suspension, revocation, or modification of the authorization
under the General Authorization will be conducted in accordance with 15
CFR part 904.
Terms and Conditions
Monitoring and Coordination
In order to ensure that research activities conducted under the
General Authorization do not either individually or cumulatively result
in takes other than by Level B harassment, NMFS plans to coordinate and
monitor research activities. Monitoring will be accomplished, in part,
through NMFS and MMC review of required annual reports. Coordination of
research activities will be accomplished, in part, by requiring persons
conducting research under the General Authorization to notify the
appropriate NMFS Regional Office(s) at least 2 weeks before initiation
of on-site activities. The Regional Office(s) will review these
notifications and coordinate upcoming research to minimize adverse
impacts on marine mammals in the wild. Where appropriate, Regional
Offices may convene meetings to coordinate research under the General
Authorization. In the event of any circumstance where research
activities result in a taking which exceeds Level B harassment, for
example, in the case of potential or actual injury to or death of a
marine mammal or marine mammal stocks in the wild, research activities
must be immediately discontinued and the principal investigator must
notify NMFS. NMFS will determine whether: The research activity in
question may continue under the General Authorization; revision of the
research methodology is necessary to remove any potential to injure
marine mammals or marine mammal stocks; or, a permit is necessary to
continue the research. The reporting of such incidents is a condition
of conducting research under the General Authorization. Similarly, in
certain instances (e.g., reports of abuse of the General
Authorization), it may be necessary for a NMFS observer to monitor
research activities directly. Therefore, a condition of conducting
research under the General Authorization is that, upon notification,
the principal investigator must allow a NMFS observer to observe
research activities.
Reporting Requirements
Persons conducting research under the General Authorization must
submit annual reports of activity. This information will be used to
monitor the effects of the activities on individual animals and their
populations, to assess possible cumulative impacts, and to determine
whether the activity is being conducted as described in the letter of
intent. Annual reports will also be used to track the progress of the
research, to determine whether the research continues to meet the bona
fide requirement, and to allow for coordination with similar research
in the same area.
Photography (e.g., still photography, videotaping, and motion
picture filming) often will be one of the methodologies employed by
researchers engaged in scientific research under the General
Authorization. Such photography does not require a photography permit
issued under the MMPA provided the primary use of the resulting images
will be for the conduct of the research or presenting or publishing the
results. In such case, such images may be incidentally used for other
scientific, educational, or commercial purposes provided the names of
all photographers are disclosed in the annual report and any
photographs, videotape, or film obtained during the conduct of research
under the General Authorization are identified by a statement that
refers to the General Authorization and includes the file number
provided by NMFS in the confirmation letter, the name of the
photographer, and the date the image was taken. This statement must
accompany the image(s) in all subsequent uses or sales. The annual
report must note incidental scientific, educational, or commercial uses
of the images. However, if the primary use of the images will be for
educational or commercial use, a separate photography permit must first
be obtained.
Classification
NMFS prepared an EA for this action and concluded that this interim
final rule will not significantly affect the human environment. As a
result, preparation of an Environmental Impact Statement on this action
is not required by section 102(2) of the National Environmental Policy
Act or its implementing regulations. Copies of the EA are available on
request (see ADDRESSES).
This interim final rule has been determined to be not significant
for purposes of E.O. 12866.
Pursuant to section 553(b)(3)(B) of the Administrative Procedure
Act (APA), the Assistant Administrator for Fisheries, NOAA, (AA) finds
there is a good cause to waive prior notice and opportunity to comment
on this rule. It is contrary to public interest to provide prior notice
and opportunity for comment because of the deadline for implementation
mandated by the 1994 Amendments.
Pursuant to section 553(d) of the APA, the AA finds there is good
cause to waive the required 30-day delay in the effective date. Any
delay in this action would deny timely coverage by the General
Authorization to qualified persons. This General Authorization grants
an exception from the MMPA requirement to obtain a scientific research
permit for the taking of marine mammals.
This interim final rule involves an existing collection-of-
information requirement subject to the Paperwork Reduction Act that has
been approved by OMB (control number 0648-0084). The burden for
collection of that information was estimated to average 43 hours per
response, including the time to complete permit applications, complete
reporting requirements, and request subsequent modifications or
authorizations. The public reporting burden for the collection-of-
information associated with the General Authorization established under
the current rule is estimated to average 17 hours per response. Send
any comments regarding these burden estimates or any other aspect of
these requirements, including suggestions for reducing the burden to
NMFS and OMB (see ADDRESSES).
List of Subjects
50 CFR Part 215
Administrative practice and procedure, Marine mammals, Penalties,
Pribilof Islands, Reporting and recordkeeping requirements.
50 CFR Part 216
Administrative practice and procedure, Imports, Indians, Marine
mammals, Penalties, Reporting and recordkeeping requirements,
Transportation.
Dated: September 27, 1994.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.
For reasons set out in the preamble, 50 CFR parts 215 and 216 are
amended as follows:
PART 215--PRIBILOF ISLANDS
1. The authority citation for part 215 is revised to read as
follows:
Authority: 16 U.S.C. 1151-1175, and 1361 et seq.
2. Section 215.1 is revised to read as follows:
Sec. 215.1 Purpose and scope.
The purpose of these regulations is to implement the provisions of
the Fur Seal Act of 1966, as amended. These regulations apply to the
administration of the Pribilof Islands; the take of fur seals; and
permits for the take, transportation, importation, exportation, or
possession of fur seals or their parts for educational, scientific, or
exhibition purposes.
3. Subpart B is revised to read as follows:
Subpart B--Permits for Scientific Research and Public Display
Sec. 215.11 Permits for scientific research and public display
purposes.
In accordance with the provisions of part 216, subpart D, of this
chapter, the Director, Office of Protected Resources, NMFS, may issue
permits for the taking, transportation, importation, exportation, or
possession of fur seals or their parts for scientific research or
public display purposes, and may authorize Level B harassment (defined
at Sec. 216.3) of fur seals for scientific research purposes under the
General Authorization for Scientific Research set forth at Sec. 216.45.
PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE
MAMMALS
4. The authority citation for part 216 continues to read as
follows:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
5. In Sec. 216.3, the definition of ``Act'' is revised, and new
definitions ``Bona fide scientific research,'' ``ESA,'' ``FSA,''
``Level A harassment,'' ``Level B harassment,'' and ``MMPA'' are added,
in alphabetical order, to read as follows:
Sec. 216.3 Definitions.
* * * * *
Acts means, collectively, the Marine Mammal Protection Act of 1972,
as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973,
as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as
amended, 16 U.S.C. 1151 et seq.
* * * * *
Bona fide scientific research: (1) Means scientific research on
marine mammals conducted by qualified personnel, the results of which:
(i) Likely would be accepted for publication in a refereed
scientific journal;
(ii) Are likely to contribute to the basic knowledge of marine
mammal biology or ecology. (Note: This includes, for example, marine
mammal parts in a properly curated, professionally accredited
scientific collection); or
(iii) Are likely to identify, evaluate, or resolve conservation
problems.
(2) Research that is not on marine mammals, but that may
incidentally take marine mammals, is not included in this definition
(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA,
and sections 7(b)(4) and 10(a)(1)(B) of the ESA).
* * * * *
ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C.
1531 et seq.
* * * * *
FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et
seq.
* * * * *
Level A Harassment means any act of pursuit, torment, or annoyance
which has the potential to injure a marine mammal or marine mammal
stock in the wild.
Level B Harassment means any act of pursuit, torment, or annoyance
which has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering but which does not have the potential to injure
a marine mammal or marine mammal stock in the wild.
* * * * *
MMPA means the Marine Mammal Protection Act of 1972, as amended, 16
U.S.C. 1361 et seq.
* * * * *
6. In part 216, all references to ``the Act'' are revised to read
``MMPA'' in the following places only.
------------------------------------------------------------------------
Part/Sec. Paragraph Frequency
------------------------------------------------------------------------
216.............................. Table of Contents entry
for Sec. 216.14.
216.2............................ .......................... 1
216.3............................ Introductory text......... 1
216.6............................ (a)....................... 1
(b)....................... 1
(d)....................... 1
(e)....................... 3
216.7............................ (a)....................... 1
(b)....................... 1
216.8............................ .......................... 5
216.12........................... (b)(1)(i)................. 1
216.13........................... (b)....................... 1
(c)....................... 1
216.14........................... Heading................... 1
(a) Introductory text..... 2
(b)(1).................... 1
216.15........................... Introductory text......... 1
216.21........................... .......................... 2
216.23........................... (d)....................... 2
216.24........................... (b)(2)(vii)............... 2
(b)(2)(viii).............. 1
(b)(4).................... 1
(c)(8).................... 1
(d)(2)(i)(D).............. 3
(d)(2)(vi)................ 2
(e)(7) introductory text.. 1
(e)(7)(ii)................ 1
(g)....................... 1
216.25........................... (a) introductory text..... 1
216.31........................... (a)(10)................... 1
(c)....................... 2
216.70........................... (a) introductory text..... 1
(a)(3).................... 1
216.72........................... .......................... 2
216.73........................... (b)(4).................... 1
------------------------------------------------------------------------
7. In subpart B, Sec. 216.16 is added to read as follows:
Sec. 216.16 Prohibitions under the General Authorization for Level B
harassment for scientific research.
It shall be unlawful for any person to:
(a) Provide false information in a letter of intent submitted
pursuant to Sec. 216.45(b);
(b) Violate any term or condition imposed pursuant to
Sec. 216.45(d).
8. In subpart C, paragraphs (b), (c), and (d) of Sec. 216.26 are
revised to read as follows:
Sec. 216.26 Collection of certain marine mammal parts.
* * * * *
(b) Any tissues, fluids or other marine mammal parts sloughed,
excreted, or otherwise discharged naturally by a living marine mammal
in the wild may be collected for purposes of bona fide scientific
research, Provided, That such parts are not substances of significant
commercial value, such as ambergris, and any such collection does not
otherwise involve the taking of a living marine mammal in the wild
except as authorized under other provisions of this part.
(c) Any marine mammal part collected under paragraphs (a) and (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 under paragraph (b) of
this section, the person who collected the part must also state the
scientific research purpose for which the part was collected.
(d) No sale or commercial trade. No person may sell or trade for
commercial purposes any marine mammal part collected under this
section.
Sec. 216.40 [Redesignated as Sec. 216.50]
9. Section 216.40 is redesignated as Sec. 216.50 of subpart E.
10. In subpart D, Sec. 216.45 is added to read as follows:
Sec. 216.45 General Authorization for Level B harassment for
scientific research.
(a) General Authorization. (1) Persons are authorized under section
104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B
harassment, as defined in Sec. 216.3, for purposes of bona fide
scientific research Provided, That:
(i) They submit a letter of intent in accordance with the
requirements of paragraph (b) of this section, receive confirmation
that the General Authorization applies in accordance with paragraph (c)
of this section, and comply with the terms and conditions of paragraph
(d) of this section; or
(ii) If such marine mammals are listed as endangered or threatened
under the ESA, they have been issued a permit under Section 10(a)(1)(A)
of the ESA and implementing regulations at 50 CFR parts 217-227,
particularly at Sec. 222.23 through Sec. 222.28, to take marine mammals
in the wild for the purpose of scientific research, the taking
authorized under the permit involves such Level B harassment of marine
mammals or marine mammal stocks, and they comply with the terms and
conditions of that permit.
(2) Except as provided under paragraph (a)(1)(ii) of this section,
no taking, including harassment, of marine mammals listed as threatened
or endangered under the ESA is authorized under the General
Authorization. Marine mammals listed as endangered or threatened under
the ESA may be taken for purposes of scientific research only after
issuance of a permit for such activities pursuant to the ESA.
(3) The following types of research activities will likely qualify
for inclusion under the General Authorization: Photo-identification
studies, behavioral observations, and vessel and aerial population
surveys (except aerial surveys over pinniped rookeries at altitudes of
less than 1,000 ft).
(b) Letter of intent. Except as provided under paragraph (a)(1)(ii)
of this section, any person intending to take marine mammals in the
wild by Level B harassment for purposes of bona fide scientific
research under the General Authorization must submit, at least 60 days
before commencement of such research, a letter of intent by certified
return/receipt mail to the Chief, Permits Division, F/PR1, Office of
Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD
20910-3226.
(1) The letter of intent must be submitted by the principal
investigator (who shall be deemed the applicant). For purposes of this
section, the principal investigator is the individual who is
responsible for the overall research project, or the institution,
governmental entity, or corporation responsible for supervision of the
principal investigator.
(2) The letter of intent must include the following information:
(i) The name, address, telephone number, qualifications and
experience of the applicant and any co-investigator(s) to be conducting
the proposed research, and a curriculum vitae for each, including a
list of publications by each such investigator relevant to the
objectives, methodology, or other aspects of the proposed research;
(ii) The species or stocks of marine mammals (common and scientific
names) that are the subject of the scientific research and any other
species or stock of marine mammals that may be harassed during the
conduct of the research;
(iii) The geographic location(s) in which the research is to be
conducted, e.g., geographic name or lat./long.;
(iv) The period(s) of time over which the research will be
conducted (up to five years), including the field season(s) for the
research, if applicable;
(v) The purpose of the research, including a description of how the
proposed research qualifies as bona fide research as defined in
Sec. 216.3; and
(vi) The methods to be used to conduct the research.
(3) The letter of intent must be signed, dated, and certified by
the applicant as follows:
In accordance with section 104(c)(3)(C) of the Marine Mammal
Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and
implementing regulations (50 CFR part 216), I hereby notify the
National Marine Fisheries Service of my intent to conduct research
involving only Level B harassment on marine mammals in the wild, and
request confirmation that the General Authorization for Level B
Harassment for Scientific Research applies to the proposed research
as described herein. I certify that the information in this letter
of intent is complete, true, and correct to the best of my knowledge
and belief, and I understand that any false statement may subject me
to the criminal penalties of 18 U.S.C. 1001, or penalties under the
MMPA and implementing regulations. I acknowledge and accept that
authority to conduct scientific research on marine mammals in the
wild under the General Authorization is a limited conditional
authority restricted to Level B harassment only, and that any other
take of marine mammals, including the conduct of any activity that
has the potential to injure marine mammals (i.e., Level A
harassment), may subject me to penalties under the MMPA and
implementing regulations.
(c) Confirmation that the General Authorization applies or
notification of permit requirement.
(1) Not later than 30 days after receipt of a letter of intent as
described in paragraph (b) of this section, the Chief, Permits
Division, NMFS will issue a letter to the applicant either:
(i) Confirming that the General Authorization applies to the
proposed scientific research as described in the letter of intent;
(ii) Notifying the applicant that all or part of the research
described in the letter of intent is likely to result in a taking of a
marine mammal in the wild involving other than Level B harassment and,
as a result, cannot be conducted under the General Authorization, and
that a scientific research permit is required to conduct all or part of
the subject research; or
(iii) Notifying the applicant that the letter of intent fails to
provide sufficient information and providing a description of the
deficiencies, or notifying the applicant that the proposed research as
described in the letter of intent is not bona fide research as defined
in Sec. 216.3.
(2) A copy of each letter of intent and letter confirming that the
General Authorization applies or notifying the applicant that it does
not apply will be forwarded to the Marine Mammal Commission.
(3) Periodically, NMFS will publish a summary document in the
Federal Register notifying the public of letters of confirmation
issued.
(d) Terms and conditions. Persons issued letters of confirmation in
accordance with paragraph (c) of this section are responsible for
complying with the following terms and conditions:
(1) Activities are limited to those conducted for the purposes, by
the means, in the locations, and during the periods of time described
in the letter of intent and acknowledged as authorized under the
General Authorization in the confirmation letter sent pursuant to
paragraph (c) of this section;
(2) Annual reports of activities conducted under the General
Authorization must be submitted to the Chief, Permits Division (address
listed in paragraph (b) of this section) within 90 days of completion
of the last field season(s) during the calendar year or, if the
research is not conducted during a defined field season, no later than
90 days after the anniversary date of the letter of confirmation issued
under paragraph (c) of this section. Annual reports must include:
(i) A summary of research activities conducted;
(ii) Identification of the species and number of each species taken
by Level B harassment;
(iii) An evaluation of the progress made in meeting the objectives
of the research as described in the letter of intent; and
(iv) Any incidental scientific, educational, or commercial uses of
photographs, videotape, and film obtained as a result of or incidental
to the research and if so, names of all photographers.
(3) Authorization to conduct research under the General
Authorization is for the period(s) of time identified in the letter of
intent or for a period of 5 years from the date of the letter of
confirmation issued under paragraph (c) of this section, whichever is
less, unless extended by the Director or modified, suspended, or
revoked in accordance with paragraph (e) of this section;
(4) Activities conducted under the General Authorization may only
be conducted under the on-site supervision of the principal
investigator or co-investigator(s) named in the letter of intent. All
personnel involved in the conduct of activities under the General
Authorization must perform a function directly supportive of and
necessary for the research being conducted, or be one of a reasonable
number of support personnel included for the purpose of training or as
back-up personnel;
(5) The principal investigator must notify the appropriate Regional
Director, NMFS, (Regional Director) in writing at least 2 weeks before
initiation of on-site activities. The Regional Director shall consider
this information in efforts to coordinate field research activities to
minimize adverse impacts on marine mammals in the wild. The principal
investigator must cooperate with coordination efforts by the Regional
Director in this regard;
(6) If research activities result in a taking which exceeds Level B
harassment, the applicant shall:
(i) Report the taking within 12 hours to the Director, Office of
Protected Resources, or his designee as set forth in the letter
authorizing research; and
(ii) Temporarily discontinue for 72 hours all field research
activities that resulted in the taking. During this time period, the
applicant shall consult with NMFS as to the circumstances surrounding
the taking and any precautions necessary to prevent future taking, and
may agree to amend the research protocol, as deemed necessary by NMFS.
(7) NMFS may review scientific research conducted pursuant to the
General Authorization. If requested by NMFS, the applicant must
cooperate with any such review and shall:
(i) Allow any employee of NOAA or any other person designated by
the Director, Office of Protected Resources to observe research
activities; and
(ii) Provide any documents or other information relating to the
scientific research;
(8) Any photographs, videotape, or film obtained during the conduct
of research under the General Authorization must be identified by a
statement that refers to the General Authorization or ESA permit
number, and includes the file number provided by NMFS in the
confirmation letter, the name of the photographer, and the date the
image was taken. This statement must accompany the image(s) in all
subsequent uses or sales. The annual report must note incidental
scientific, educational, or commercial uses of the images, and if there
are any such uses, the names of all photographers; and
(9) Persons conducting scientific research under authority of the
General Authorization may not transfer or assign any authority granted
thereunder to any other person.
(e) Suspension, revocation, or modification. (1) NMFS may suspend,
revoke, or modify the authority to conduct scientific research under
the General Authorization if:
(i) The letter of intent included false information or statements
of a material nature;
(ii) The research does not constitute bona fide scientific
research;
(iii) Research activities result in takings of marine mammals other
than by Level B harassment;
(iv) Research activities differ from those described in the letter
of intent submitted by the applicant and letter of confirmation issued
by NMFS; or
(v) The applicant violates any term or condition set forth in this
section.
(2) Any suspension, revocation, or modification is subject to the
requirements of 15 CFR part 904.
[FR Doc. 94-24356 Filed 9-28-94; 2:05 pm]
BILLING CODE 3510-22-W
