50 CFR § 216.30-216.49 - Regulations governing the taking and importing of marine mammals - Special Exceptions

59 National Marine Fisheries Service/NOAA, Commerce § 216.33 Committee of Scientific Advisors on Marine Mammals, and are conducted pursuant to a scientific research per mit. (d) Reporting. In addition to the re port required under § 216.22(b), the per son authorized to hold marine mam mals for rehabilitation must submit re ports to the Regional Director or Office Director regarding release or other dis position. These reports must be pro vided in the form and frequency speci fied by the Regional Director or Office Director. [61 FR 21933, May 10, 1996] Subpart D—Special Exceptions § 216.30 [Reserved] § 216.31 Definitions. For the purpose of this subpart, the definitions set forth in 50 CFR part 217 shall apply to all threatened and en dangered marine mammals, unless a more restrictive definition exists under the MMPA or part 216. [61 FR 21935, May 10, 1996] § 216.32 Scope. The regulations of this subpart apply to: (a) All marine mammals and marine mammal parts taken or born in cap tivity after December 20, 1972; and (b) All marine mammals and marine mammal parts that are listed as threatened or endangered under the ESA. [61 FR 21935, May 10, 1996] § 216.33 Permit application submis sion, review, and decision proce dures. (a) Application submission. Persons seeking a special exemption permit under this subpart must submit an ap plication to the Office Director. The application must be signed by the ap plicant, and provide in a properly for matted manner all information nec essary to process the application. Writ ten instructions addressing informa tion requirements and formatting may be obtained from the Office Director upon request. (b) Applications to export living marine mammals. For applicants seeking a spe cial exception permit to export living marine mammals, the application must: (1) Be submitted through the Conven tion on International Trade in Endan gered 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 en forcement of the terms and conditions of the permit, and that the foreign gov ernment will enforce all terms and con ditions; 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 applica tion. (2) During the initial review, the Of fice Director will determine: (i) Whether the application is com plete. (ii) Whether the proposed activity is for purposes authorized under this sub part. (iii) If the proposed activity is for en hancement purposes, whether the spe cies or stock identified in the applica tion is in need of enhancement for its survival or recovery and whether the proposed activity will likely succeed in its objectives. (iv) Whether the activities proposed are to be conducted consistent with the permit restrictions and permit specific conditions as described in § 216.35 and § 216.36(a). (v) Whether sufficient information is included regarding the environmental impact of the proposed activity to en able the Office Director: (A) To make an initial determination under the National Environmental Pol icy Act (NEPA) as to whether the pro posed activity is categorically excluded from preparation of further environ mental documentation, or whether the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00069 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 60 50 CFR Ch. II (10–1–22 Edition) § 216.33 preparation of an environmental as sessment (EA) or environmental im pact statement (EIS) is appropriate or necessary; and (B) To prepare an EA or EIS if an ini tial determination is made by the Of fice 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 Mam mals (Committee) in making these ini tial, and any subsequent, determina tions. (4) Incomplete applications will be returned with explanation. If the appli cant fails to resubmit a complete appli cation or correct the identified defi ciencies within 60 days, the application will be deemed withdrawn. Applica tions that propose activities incon sistent with this subpart will be re turned with explanation, and will not be considered further. (d) Notice of receipt and application re view. (1) Upon receipt of a valid, com plete application, and the preparation of any NEPA documentation that has been determined initially to be re quired, the Office Director will publish a notice of receipt in the FEDERAL REG ISTER. The notice will: (i) Summarize the application, in cluding: (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 ma rine mammals will be taken, from which they will be imported, or to which they will be exported; and (E) The requested period of the per mit. (ii) List where the application is available for review. (iii) Invite interested parties to sub mit 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 categori cally 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 com ments 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 re quest a public hearing on the applica tion. (5) If the Office Director deems it ad visable, the Office Director may hold a public hearing within 60 days of publi cation 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 REG ISTER not less than 15 days in advance of the public hearing. Any interested person may appear in person or through representatives and may sub mit 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 pub lished in the FEDERAL REGISTER within 60 days of publication of the notice of receipt in the FEDERAL REGISTER. (7) If, after publishing a notice of re ceipt, 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 de nied under these circumstances the ap plication may be resubmitted with in formation 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 pub lic hearing or, if no public hearing is held, within 30 days of the close of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00070 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 61 National Marine Fisheries Service/NOAA, Commerce § 216.34 public comment period, the Office Di rector will issue or deny a special ex ception permit. (2) The decision to issue or deny a permit will be based upon: (i) All relevant issuance criteria set forth at § 216.34; (ii) All purpose-specific issuance cri teria as appropriate set forth at § 216.41, § 216.42, and § 216.43; (iii) All comments received or views solicited on the permit application; and (iv) Any other information or data that the Office Director deems rel evant. (3) If the permit is issued, upon re ceipt, 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 per mit 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 regula tions 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 FED ERAL REGISTER within 10 days after the date of permit issuance or denial and shall indicate where copies of the per mit, if issued, may be reviewed or ob tained. If the permit issued involves marine mammals listed as endangered or threatened under the ESA, the no tice shall include a finding by the Of fice 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 Di rector 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 Of fice 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 threat ened 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 FED ERAL REGISTER within 10 days of issuance. (7) The applicant or any party op posed to a permit may seek judicial re view 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 pro vided for by law. [61 FR 21935, May 10, 1996] § 216.34 Issuance criteria. (a) For the Office Director to issue any permit under this subpart, the ap plicant must demonstrate that: (1) The proposed activity is humane and does not present any unnecessary risks to the health and welfare of ma rine mammals; (2) The proposed activity is con sistent with all restrictions set forth at § 216.35 and any purpose-specific restric tions as appropriate set forth at § 216.41, § 216.42, and § 216.43; (3) The proposed activity, if it in volves endangered or threatened ma rine mammals, will be conducted con sistent 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 ad verse impact on the species or stock; (5) Whether the applicant’s expertise, facilities, and resources are adequate to accomplish successfully the objec tives and activities stated in the appli cation; (6) If a live animal will be held cap tive 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 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00071 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 62 50 CFR Ch. II (10–1–22 Edition) § 216.35 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 ap plication will be considered. [61 FR 21936, May 10, 1996] § 216.35 Permit restrictions. The following restrictions shall apply to all permits issued under this sub part: (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 spe cial exception permit issued, or any major amendment granted, is five years from the effective date of the permit or major amendment. In ac cordance with the provisions of § 216.39, the period of a permit may be extended by a minor amendment up to 12 months beyond that established in the original permit. (c) Except as provided for in § 216.41(c)(1)(v), marine mammals or marine mammal parts imported under the authority of a permit must be taken or imported in a humane man ner, and in compliance with the Acts and any applicable foreign law. Impor tation of marine mammals and marine mammal parts is subject to the provi sions 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 spe cial exception permit. Additionally, the permit holder shall not import any marine mammal that is pregnant or lactating at the time of taking or im port, or is unweaned or less than eight months old unless such import is spe cifically 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 pos sess 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 Fed eral licenses to conduct activities au thorized under the permit must be duly licensed when undertaking such activi ties; (i) Special exception permits are not transferable or assignable to any other person, and a permit holder may not require any direct or indirect com pensation from another person in re turn for requesting authorization for such person to conduct the taking, im port, or export activities authorized under the subject permit; (j) The permit holder or designated agent shall possess a copy of the per mit when engaged in a permitted activ ity, 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 con tainer, 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 mam mals held captive and marine mammal parts in storage, a copy of the permit shall be kept on file in the holding or storage facility. [61 FR 21936, May 10, 1996] § 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, in cluding, but not limited to: (i) The number and species of marine mammals that are authorized to be taken, imported, exported, or other wise affected; (ii) The manner in which marine mammals may be taken according to type of take; (iii) The location(s) in which the ma rine mammals may be taken, from VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00072 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 63 National Marine Fisheries Service/NOAA, Commerce § 216.37 which they may be imported, or to which they may be exported, as appli cable, and, for endangered or threat ened marine mammal species to be im ported or exported, the port of entry or export; (iv) The period during which the per mit is valid. (2) [Reserved] (b) Other conditions. In addition to the specific conditions imposed pursu ant to paragraph (a) of this section, the Office Director shall specify any other permit conditions deemed appropriate. [61 FR 21937, May 10, 1996] § 216.37 Marine mammal parts. With respect to marine mammal parts acquired by take or import au thorized 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 conserva tion 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, im port, 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 de pleted, 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 au thorized by the Regional Director, con sistent with the requirements of para graphs (a)(1) and (a)(3) through (6) of this section. (3) The marine mammal part is trans ferred for the purpose of scientific re search, maintenance in a properly curated, professionally accredited sci entific collection, or education, pro vided that, for transfers for edu cational 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 con tainer; (5) The person receiving the marine mammal part agrees that, as a condi tion of receipt, subsequent transfers may only occur subject to the provi sions of paragraph (a) of this section; and (6) Within 30 days after the transfer, the person transferring the marine mammal part notifies the Regional Di rector of the transfer, including a de scription 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 per mit 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 main tained; 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 speci fied in the permit, a holder of a special exception permit may retain marine mammal parts not destroyed or other wise disposed of during or after a sci entific research or enhancement activ ity, if such marine mammal parts are: (1) Maintained as part of a properly curated, professionally accredited col lection; or (2) Made available for purposes of sci entific research or enhancement at the request of the Office Director. (d) Marine mammal parts may be ex ported and subsequently reimported by a permit holder or subsequent author ized recipient, for the purpose of sci entific research, maintenance in a VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00073 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 64 50 CFR Ch. II (10–1–22 Edition) § 216.38 properly curated, professionally ac credited scientific collection, or edu cation, provided that: (1) The permit holder or other person receives no remuneration for the ma rine 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 ex ported or reimported in compliance with all applicable domestic and for eign laws; (4) If exported or reimported for edu cational 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 re import as required by the Office Direc tor under § 216.38. [61 FR 21937, May 10, 1996] § 216.38 Reporting. All permit holders must submit an nual, final, and special reports in ac cordance with the requirements estab lished in the permit, and any reporting format established by the Office Direc tor. [61 FR 21937, May 10, 1996] § 216.39 Permit amendments. (a) General. Special exception permits may be amended by the Office Direc tor. Major and minor amendments may be made to permits in response to, or independent of, a request from the per mit holder. Amendments must be con sistent with the Acts and comply with the applicable provisions of this sub part. (1) A major amendment means any change to the permit specific condi tions under § 216.36(a) regarding: (i) The number and species of marine mammals that are authorized to be taken, imported, exported, or other wise affected; (ii) The manner in which these ma rine mammals may be taken, imported, exported, or otherwise affected, if the proposed change may result in an in creased level of take or risk of adverse impact; (iii) The location(s) in which the ma rine mammals may be taken, from which they may be imported, and to which they may be exported, as appli cable; 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 writ ing and include the following: (i) The purpose and nature of the amendment; (ii) Information, not previously sub mitted as part of the permit applica tion or subsequent reports, necessary to determine whether the amendment satisfies all issuance criteria set forth at § 216.34, and, as appropriate, § 216.41, § 216.42, and § 216.43. (iii) Any additional information re quired by the Office Director for pur poses of reviewing the proposed amend ment. (2) If an amendment is proposed by the Office Director, the permit holder will be notified of the proposed amend ment, together with an explanation. (c) Review of proposed amendments—(1) Major amendments. The provisions of § 216.33(d) and (e) governing notice of receipt, review and decision shall apply to all proposed major amendments. (2) Minor amendments. (i) After re viewing 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 expla nation 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 deci sion. (iii) A minor amendment will be ef fective upon a final decision by the Of fice Director. [61 FR 21937, May 10, 1996] VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00074 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 65 National Marine Fisheries Service/NOAA, Commerce § 216.41 § 216.40 Penalties and permit sanc tions. (a) Any person who violates any pro vision 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. [61 FR 21938, May 10, 1996] § 216.41 Permits for scientific research and enhancement. In addition to the requirements under §§ 216.33 through 216.38, permits for scientific research and enhance ment are governed by the following re quirements: (a) Applicant. (1) For each application submitted under this section, the appli cant 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 inves tigator or is otherwise controlled by and dependent upon another entity, the applicant may be the institution, gov ernmental entity, or corporation re sponsible for supervision of the prin cipal investigator. (2) For any scientific research involv ing captive maintenance, the applica tion must include supporting docu mentation from the person responsible for the facility or other temporary en closure. (b) Issuance Criteria. For the Office Director to issue any scientific re search or enhancement permit, the ap plicant 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 di rectly benefit that species or stock, or will fulfill a critically important re search need. (3) Any permanent removal of a ma rine mammal from the wild is con sistent with any applicable quota es tablished 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 de pleted, 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 pro posed to be listed as threatened or en dangered; (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 spe cies or stock; (iii) The proposed research will ei ther: (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 objec tive identified by the Office Director in stock assessments established under section 117 of the MMPA; (B) Contribute significantly to under standing the basic biology or ecology of the species or stock, or to identi fying, evaluating, or resolving con servation problems for the species or stock; or (C) Contribute significantly to ful filling a critically important research need. (6) For proposed enhancement activi ties: (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, ex ported, 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 con duct of breeding programs or the diag nosis or treatment of disease. (ii) The activity will likely con tribute significantly to maintaining or increasing distribution or abundance, enhancing the health or welfare of the VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00075 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 66 50 CFR Ch. II (10–1–22 Edition) § 216.41 species or stock, or ensuring the sur vival 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 re covery 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 conserva tion or recovery plan. (iv) An enhancement permit may au thorize the captive maintenance of a marine mammal from a threatened, en dangered, or depleted species or stock only if the Office Director determines that: (A) The proposed captive mainte nance will likely contribute directly to the survival or recovery of the species or stock by maintaining a viable gene pool, increasing productivity, pro viding necessary biological informa tion, or establishing animal reserves required to support directly these ob jectives; and (B) The expected benefit to the spe cies or stock outweighs the expected benefits of alternatives that do not re quire 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 en hancement permit only if: (A) The public display is incidental to the authorized captive maintenance; (B) The public display will not inter fere with the attainment of the sur vival 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 im plement an essential enhancement ac tivity; and (D) The marine mammals will be ex cluded from any interactive program and will not be trained for perform ance. (vi) The Office Director may author ize non-intrusive scientific research to be conducted while a marine mammal is held under the authority of an en hancement permit, only if such sci entific research: (A) Is incidental to the permitted en hancement activities; and (B) Will not interfere with the attain ment of the survival or recovery objec tives. (c) Restrictions. (1) The following re strictions apply to all scientific re search permits issued under this sub part: (i) Research activities must be con ducted in the manner authorized in the permit. (ii) Research results shall be pub lished or otherwise made available to the scientific community in a reason able period of time. (iii) Research activities must be con ducted under the direct supervision of the principal investigator or a co-in vestigator identified in the permit. (iv) Personnel involved in research activities shall be reasonable in num ber and limited to: (A) Individuals who perform a func tion directly supportive of and nec essary to the permitted research activ ity; and (B) Support personnel included for the purpose of training or as backup personnel for persons described in para graph (c)(1)(iv)(A). (v) Any marine mammal part im ported under the authority of a sci entific 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 Of fice 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 ac tivities: (A) Are necessary to address sci entific research objectives and have been specifically authorized by the Of fice Director under the scientific re search permit; and (B) Are conducted incidental to and do not in any way interfere with the permitted scientific research; and VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00076 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 67 National Marine Fisheries Service/NOAA, Commerce § 216.45 (C) Are conducted in a manner con sistent with provisions applicable to public display, unless exceptions are specifically authorized by the Office Director. (vii) Any activity conducted inci dental to the authorized scientific re search activity must not involve any taking of marine mammals beyond what is necessary to conduct the re search (i.e., educational and commer cial 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 fea sible, consistent with the terms of the enhancement permit and the objectives of an approved conservation or recov ery plan. In accordance with section 10(j) of the ESA, the Office Director may authorize the release of any popu lation of an endangered or threatened species outside the current range of such species if the Office Director de termines that such release will further the conservation of such species. [61 FR 21938, May 10, 1996] § 216.42 Photography. [Reserved] § 216.43 Public display. [Reserved] § 216.44 Applicability/transition. (a) General. The regulations of this subpart are applicable to all persons, including persons holding permits or other authorizing documents issued be fore June 10, 1996, by NMFS for the take, import, export, or conduct of any otherwise prohibited activity involving a marine mammal or marine mammal part for special exception purposes. (b) Scientific research. Any intrusive research as defined in § 216.3, initiated after June 10, 1996, must be authorized under a scientific research permit. In trusive research authorized by the Of fice Director to be conducted on cap tive 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. [61 FR 21939, May 10, 1996] § 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 ma rine mammals in the wild by Level B harassment, as defined in § 216.3, for purposes of bona fide scientific re search 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 Author ization applies in accordance with paragraph (c) of this section, and com ply with the terms and conditions of paragraph (d) of this section; or (ii) If such marine mammals are list ed as endangered or threatened under the ESA, they have been issued a per mit under Section 10(a)(1)(A) of the ESA and implementing regulations at 50 CFR parts 217–227, particularly at § 222.23 through § 222.28, to take marine mammals in the wild for the purpose of scientific research, the taking author ized under the permit involves such Level B harassment of marine mam mals or marine mammal stocks, and they comply with the terms and condi tions of that permit. (2) Except as provided under para graph (a)(1)(ii) of this section, no tak ing, including harassment, of marine mammals listed as threatened or en dangered under the ESA is authorized under the General Authorization. Ma rine mammals listed as endangered or threatened under the ESA may be taken for purposes of scientific re search only after issuance of a permit for such activities pursuant to the ESA. (3) The following types of research activities will likely qualify for inclu sion under the General Authorization: Photo-identification studies, behav ioral observations, and vessel and aer ial population surveys (except aerial surveys over pinniped rookeries at alti tudes of less than 1,000 ft). (b) Letter of intent. Except as provided under paragraph (a)(1)(ii) of this sec tion, any person intending to take ma rine mammals in the wild by Level B harassment for purposes of bona fide scientific research under the General Authorization must submit, at least 60 VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00077 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 68 50 CFR Ch. II (10–1–22 Edition) § 216.45 days before commencement of such re search, a letter of intent by certified return/receipt mail to the Chief, Per mits Division, F/PR1, Office of Pro tected Resources, NMFS, 1335 East West Highway, Silver Spring, MD 20910–3226. (1) The letter of intent must be sub mitted by the principal investigator (who shall be deemed the applicant). For purposes of this section, the prin cipal investigator is the individual who is responsible for the overall research project, or the institution, govern mental entity, or corporation respon sible for supervision of the principal in vestigator. (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-investi gator(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 as pects of the proposed research; (ii) The species or stocks of marine mammals (common and scientific names) that are the subject of the sci entific 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 sea son(s) for the research, if applicable; (v) The purpose of the research, in cluding a description of how the pro posed research qualifies as bona fide re search as defined in § 216.3; and (vi) The methods to be used to con duct the research. (3) The letter of intent must be signed, dated, and certified by the ap plicant 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 imple menting regulations (50 CFR part 216), I hereby notify the National Marine Fisheries Service of my intent to conduct research in volving only Level B harassment on marine mammals in the wild, and request confirma tion 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 acknowl edge 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 con duct of any activity that has the potential to injure marine mammals (i.e., Level A harass ment), may subject me to penalties under the MMPA and implementing regulations. (c) Confirmation that the General Au thorization applies or notification of per mit 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 appli cant either: (i) Confirming that the General Au thorization applies to the proposed sci entific research as described in the let ter 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 harass ment and, as a result, cannot be con ducted under the General Authoriza tion, and that a scientific research per mit is required to conduct all or part of the subject research; or (iii) Notifying the applicant that the letter of intent fails to provide suffi cient information and providing a de scription of the deficiencies, or noti fying the applicant that the proposed research as described in the letter of intent is not bona fide research as de fined in § 216.3. (2) A copy of each letter of intent and letter confirming that the General Au thorization applies or notifying the ap plicant that it does not apply will be forwarded to the Marine Mammal Com mission. (3) Periodically, NMFS will publish a summary document in the FEDERAL REGISTER notifying the public of let ters of confirmation issued. VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00078 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 69 National Marine Fisheries Service/NOAA, Commerce ยง 216.45 (d) Terms and conditions. Persons issued letters of confirmation in ac cordance with paragraph (c) of this sec tion 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 author ized under the General Authorization in the confirmation letter sent pursu ant to paragraph (c) of this section; (2) Annual reports of activities con ducted under the General Authoriza tion 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 sea son(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, edu cational, or commercial uses of photo graphs, 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 ac cordance with paragraph (e) of this sec tion; (4) Activities conducted under the General Authorization may only be conducted under the on-site super vision 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 per sonnel included for the purpose of training or as back-up personnel; (5) The principal investigator must notify the appropriate Regional Direc tor, NMFS, (Regional Director) in writ ing at least 2 weeks before initiation of on-site activities. The Regional Direc tor shall consider this information in efforts to coordinate field research ac tivities to minimize adverse impacts on marine mammals in the wild. The principal investigator must cooperate with coordination efforts by the Re gional Director in this regard; (6) If research activities result in a taking which exceeds Level B harass ment, the applicant shall: (i) Report the taking within 12 hours to the Director, Office of Protected Re sources, 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 pre cautions necessary to prevent future taking, and may agree to amend the re search protocol, as deemed necessary by NMFS. (7) NMFS may review scientific re search conducted pursuant to the Gen eral 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 Di rector, 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 re search under the General Authoriza tion must be identified by a statement that refers to the General Authoriza tion or ESA permit number, and in cludes 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, VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00079 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 70 50 CFR Ch. II (10–1–22 Edition) § 216.46 educational, or commercial uses of the images, and if there are any such uses, the names of all photographers; and (9) Persons conducting scientific re search under authority of the General Authorization may not transfer or as sign any authority granted thereunder to any other person. (e) Suspension, revocation, or modifica tion. (1) NMFS may suspend, revoke, or modify the authority to conduct sci entific research under the General Au thorization if: (i) The letter of intent included false information or statements of a mate rial 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 require ments of 15 CFR part 904. [59 FR 50376, Oct. 3, 1994] § 216.46 U.S. citizens on foreign flag vessels operating under the Inter national Dolphin Conservation Pro gram. The MMPA’s provisions do not apply to a citizen of the United States who incidentally takes any marine mam mal during fishing operations in the ETP which are outside the U.S. exclu sive economic zone (as defined in sec tion 3 of the Magnuson-Stevens Fish ery Conservation and Management Act (16 U.S.C. 1802)), while employed on a fishing vessel of a harvesting nation that is participating in, and in compli ance with, the IDCP. [65 FR 56, Jan. 3, 2000] § 216.47 Access to marine mammal tis sue, analyses, and data. (a) Applications for the National Ma rine Mammal Tissue Bank samples (NMMTB). (1) A principal investigator, contributor or holder of a scientific re search permit issued in accordance with the provisions of this subpart may apply for access to a tissue specimen sample in the NMMTB. Applicants for tissue specimen samples from the NMMTB must submit a signed written request with attached study plan to the Marine Mammal Health and Stranding Response Program (MMHSRP) Program Manager, Office of Protected Resources, NMFS. The writ ten request must include: (i) A clear and concise statement of the proposed use of the banked tissue specimen. The applicant must dem onstrate that the proposed use of the banked tissue is consistent with the goals of the NMMTB and the MMHSRP. (A) The goals of the MMHSRP are to facilitate the collection and dissemina tion of reference data on marine mam mals and health trends of marine mam mal populations in the wild; to cor relate the health of marine mammals and marine mammal populations in the wild with available data on physical, chemical, and biological environmental parameters; and to coordinate effective responses to unusual mortality events. (B) The goal of the NMMTB is to maintain quality controlled marine mammal tissues that will permit retro spective analyses to determine envi ronmental trends of contaminants and other analytes of interest and that will provide the highest quality samples for analyses using new and innovative techniques. (ii) A copy of the applicant’s sci entific research permit. The applicant must demonstrate that the proposed use of the banked tissue is authorized by the permit; (iii) Name of principal investigator, official title, and affiliated research or academic organization; (iv) Specific tissue sample and quan tity desired; (v) Research facility where analyses will be conducted. The applicant must demonstrate that the research facility will follow the Analytical Quality As surance (AQA) program, which was de signed to ensure the accuracy, preci sion, level of detection, and inter compatibility of data resulting from chemical analyses of marine mammal tissues. The AQA consists of annual VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00080 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 71 National Marine Fisheries Service/NOAA, Commerce § 216.47 interlaboratory comparisons and the development of control materials and standard reference materials for ma rine mammal tissues; (vi) Verification that funding is available to conduct the research; (vii) Estimated date for completion of research, and schedule/date of subse quent reports; (viii) Agreement that all research findings based on use of the banked tis sue will be reported to the NMMTB, MMHSRP Program Manager and the contributor; and the sequences of tis sue specimen samples that are used/re leased for genetic analyses (DNA se quencing) will be archived in the Na tional Center for biotechnology Infor mation’s GenBank. Sequence acces sions in GenBank should document the source, citing a NIST field number that indentifies the animal; and (ix) Agreement that credit and ac knowledgment will be given to U.S. Fish and Wildlife Service (USFWS), US Geologic Service (USGS), National In stitute of Standards and Technology (NIST), the Minerals Management Service (MMS), NMFS, the NMMTB, and the collector for use of banked tis sues. (2) The applicant shall insert the fol lowing acknowledgment in all publica tions, abstracts, or presentations based on research using the banked tissue: The specimens used in this study were col lected by [the contributor] and provided by the National Marine Mammal Tissue Bank, which is maintained in the National Biomon itoring Specimen Bank at NIST and which is operated under the direction of NMFS with the collaboration of MMS, USGS, USFWS, and NIST through the Marine Mammal Health and Stranding Response Program [and the Alaska Marine Mammal Tissue Ar chival Project if the samples are from Alas ka]. (3) Upon submission of a complete ap plication, the MMHSRP Program Man ager will send the request and attached study plan to the following entities which will function as the review com mittee: (i) Appropriate Federal agency (NMFS or USFWS) marine mammal management office for that particular species; and (ii) Representatives of the NMMTB Collaborating Agencies (NMFS, USFS, USGS Biological Resources Division, and NIST) If no member of the review committee is an expert in the field that is related to the proposed research ac tivity, any member may request an outside review of the proposal, which may be outside of NMFS or USFWS but within the Federal Government. (4) The MMHSRP Program Manager will send the request and attached study plan to any contributor(s) of the tissue specimen sample. The contrib utor(s) of the sample may submit com ments on the proposed research activ ity to the Director, Office of Protected Resources within 30 days of the date that the request was sent to the con tributor(s). (5) The USFWS Representative of the NMMTB Collaborating Agencies will be chair of review committees for re quests involving species managed by the DOI. The MMHSRP Program Man ager will be chair of all other review committees. (6) Each committee chair will provide recommendations on the request and an evaluation of the study plan to the Director, Office of Protected Re sources, NMFS. (7) The Director, Office of Protected Resources, NMFS, will make the final decision on release of the samples based on the advice provided by the re view committee, comments received from any contributor(s) of the sample within the time provided in paragraph (a)(4) of this section, and determina tion that the proposed use of the banked tissue specimen is consistent with the goals of the MMHSRP and the NMMTB. The Director will send a writ ten decision to the applicant and send copies to all review committee mem bers. If the samples are released, the response will indicate whether the samples have been homogenized and, if not, the homogenization schedule. (8) The applicant will bear all ship ping and homogenization costs related to use of any specimens from the NMMTB. (9) The applicant will dispose of the tissue specimen sample consistent with the provisions of the applicant’s sci entific research permit after the re search is completed, unless the re quester submits another request and receives approval pursuant to this sec tion. The request must be submitted VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00081 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R 72 50 CFR Ch. II (10–1–22 Edition) §§ 216.48–216.49 within three months after the original project has been completed. (b) [Reserved] [69 FR 41979, July 13, 2004] §§ 216.48–216.49 [Reserved] Subpart E—Designated Ports § 216.50 Importation at designated ports. (a) Any marine mammal or marine mammal product which is subject to the jurisdiction of the National Marine Fisheries Service, National Oceanic and Atmospheric Administration, De partment of Commerce and is intended for importation into the United States shall be subject to the provisions of 50 CFR part 14. (b) For the information of importers, designated ports of entry for the United States are: New York, N.Y. Miami, Fla. Chicago, Ill. San Francisco, Calif. Los Angeles, Calif. New Orleans, La. Seattle, Wash. Honolulu, Hi. (c) Additionally, marine mammals or marine mammal products which are entered into Alaska, Hawaii, Puerto Rico, Guam, American Samoa or the Virgin Islands and which are not to be forwarded or transhipped within the United States may be imported through the following ports: Alaska—Juneau, Anchorage, Fairbanks Hawaii—Honolulu Puerto Rico—San Juan Guam—Honolulu, Hi. American Samoa—Honolulu, Hi. Virgin Islands—San Juan, P.R. (d) Importers are advised to see 50 CFR part 14 for importation require ments and information. [39 FR 1852, Jan. 15, 1974. Redesignated at 59 FR 50376, Oct. 3, 1994] Subpart F—Pribilof Islands, Taking for Subsistence Purposes § 216.71 Allowable take of fur seals. Pribilovians may take fur seals on the Pribilof Islands if such taking is (a) For subsistence uses, and (b) Not accomplished in a wasteful manner. [51 FR 24840, July 9, 1986. Redesignated at 61 FR 11750, Mar. 22, 1996] § 216.72 Restrictions on subsistence use of fur seals. (a) The harvests of seals on St. Paul and St. George Islands shall be treated independently for the purposes of this section. Any suspension, termination, or extension of the harvest is applica ble only to the island for which it is issued. (b)–(c)[Reserved] (d) St. George Island. The subsistence fur seal harvest restrictions described in paragraphs (d)(1) through (5) of this section apply exclusively to the har vest of sub-adult fur seals; restrictions that apply exclusively to the harvest of young of the year fur seals can be found in paragraphs (d)(6) through (11) of this section. For the taking of fur seals for subsistence uses, Pribilovians on St. George Island may harvest up to a total of 500 male fur seals per year over the course of both the sub-adult male harvest and the male young of the year harvest. Pribilovians are au thorized each year up to three mortali ties of female fur seals associated with the subsistence seasons. Any female fur seal mortalities will be included in the total authorized subsistence harvest of 500 fur seals per year. (1) Pribilovians may only harvest sub-adult male fur seals 124.5 centi meters or less in length from June 23 through August 8 annually on St. George Island. (2) Pribilovians may harvest sub adult male fur seals at the hauling grounds shown in Figure 1 to part 216. No hauling ground may be harvested more than twice per week. (3) [Reserved] (4) The scheduling of the sub-adult male harvest is at the discretion of the Pribilovians, but must be such as to minimize stress to the harvested seals. The Pribilovians must give adequate advance notice of their harvest sched ules to the NMFS representatives to allow for necessary monitoring activi ties. No fur seal may be taken except by experienced sealers using the tradi tional harvesting methods, including stunning followed immediately by VerDate Sep<11>2014 16:47 Jan 20, 2023 Jkt 256245 PO 00000 Frm 00082 Fmt 8010 Sfmt 8010 Q:\50\50V10.TXT PC31sf ra tti ni o n LA P JZ K W 1R 2 w ith D IS T IL LE R