[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



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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.

-----------------------------------------------------------------------

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