[Federal Register Volume 61, Number 92 (Friday, May 10, 1996)]
[Rules and Regulations]
[Pages 21926-21939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11776]




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_______________________________________________________________________

Part IX





Department of Commerce





_______________________________________________________________________



National Oceanic and Atmospheric Administration



_______________________________________________________________________



15 CFR Part 902



50 CFR Parts 216 and 222



Reporting and Recordkeeping Requirements; Final Rule

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

[[Page 21926]]



DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

15 CFR Part 902

50 CFR Parts 216 and 222

[Docket No. 960419116-6116-01; I.D. 122492C]
RIN 0648-AD11


Marine Mammal Special Exception Permits to Take, Import and 
Export Marine Mammals; Update of Office of Management and Budget (OMB) 
Approval Numbers

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Final rule.

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

SUMMARY: This final rule updates and consolidates the regulations for 
special exception permits to: Take, import, export, or carry out any 
other otherwise prohibited act involving marine mammals for the 
purposes of scientific research, enhancing the survival or recovery of 
a marine mammal species or stock (enhancement), educational and 
commercial photography, and public display under the Marine Mammal 
Protection Act of 1972 (MMPA); take, import, export or carry out any 
other otherwise prohibited act concerning endangered or threatened 
marine mammals for scientific purposes or enhancement under the 
Endangered Species Act of 1973 (ESA); and, determine the status and 
disposition of rehabilitated stranded marine mammals. This rule sets 
forth revised procedures for these permits in order to make 
administration of the NMFS marine mammal permit program more efficient, 
consistent, and predictable.
    This rule also updates OMB Paperwork Reduction Act approval numbers 
for applications and reports for special exception permits.

EFFECTIVE DATE: This final rule is effective June 10, 1996.

ADDRESSES: National Marine Fisheries Service, (F/PR1), 1315 East-West 
Highway, Silver Spring, MD 20910.

FOR FURTHER INFORMATION CONTACT: Laurel Bryant or Ann Terbush, Permits 
Division, Office of Protected Resources, 301/713-2289.

SUPPLEMENTARY INFORMATION:

Purpose

    A proposed rule was published (58 FR 53320, October 14, 1993) to 
consolidate into a single set of regulations all permitting 
requirements under the MMPA, the ESA, and the Fur Seal Act (FSA) to 
take, import, or export all protected species under the NMFS 
jurisdiction for purposes of scientific research or enhancement, and 
public display, and to provide clear procedures for the disposition of 
rehabilitated stranded marine mammals.
    In contrast, this final rule implements only a part of that 
proposed rule; namely, it establishes basic permit requirements 
applicable to all permits to take, import and export marine mammals and 
marine mammal parts for purposes of scientific research and 
enhancement, photography, and public display (for captures and initial 
imports) under the MMPA; provides additional permit criteria specific 
to scientific research and enhancement only; and establishes clarified 
administrative procedures for determining the releasability or non-
releasability of rehabilitated stranded marine mammals and their 
disposition.

Scope

    This notice responds to the comments and the final rule 
incorporates a number of the changes recommended by commenters. In 
addition, the rule implements certain statutory changes made to the 
MMPA by the MMPA Amendments of 1994 (1994 Amendments) (Public Law 103-
238) enacted on April 30, 1994.
    Photography and public display. Not included in this final rule are 
the additional requirements specific to photography or public display 
established by the 1994 Amendments. The 1994 Amendments included 
significant changes regarding these activities. Accordingly, NMFS will 
publish separate proposed rules for public comment for these areas.
    ESA species. It is important to note that this final rule applies 
to the issuance of special exception permits under both the MMPA and 
ESA for species of marine mammals only. However, activities involving 
species other than marine mammals that are protected under the ESA will 
continue to require a permit issued under separate ESA regulations.

History

    The 1993 proposed rule. The proposed rule proposed to amend and 
consolidate permit regulations under the FSA, MMPA and the ESA to 
facilitate ``one-stop shopping'' for the issuance of permits to take 
``protected species'' (including species that are depleted under the 
MMPA, and threatened and endangered under the ESA) for purposes of 
scientific research, enhancement and public display. The proposed rule 
was also designed to establish permit conditions capable of addressing 
the various circumstances that had evolved over two decades of issuing 
permits to take marine mammals. For example, although photography of 
marine mammals in the wild is a common source of research and 
educational information, the MMPA did not provide an exception for such 
an activity. The 1993 proposed rule attempted to facilitate research 
related photography under statutory provisions for bona fide scientific 
research and enhancement activities, while at the same time guarding 
against the use of research permits for commercial activities, which 
had become a growing concern. However, comments received on the 
proposed rule were critical of these provisions as being too 
restrictive and bureaucratic. The new authority to issue permits for 
educational and commercial photography provided by the 1994 Amendments 
eliminates the need for addressing photography in much detail under 
scientific research permits.
    The proposed rule was originally open for public comment for a 60-
day period. A number of focused briefings on the proposed rule were 
held for a variety of interested parties, including Congress, various 
groups directly affected by the regulations, and the public. In 
addition, NMFS held three regional public hearings: Silver Spring, MD 
on December 3; Oakland, CA on December 6; and Chicago, IL on December 
8. A combined total of 53 oral and written testimonies was submitted 
for the record through the public hearing process. Due to the level of 
interest expressed, NMFS extended the public comment period for an 
additional 30 days, closing on January 28, 1994. In addition, a 
transcribed question and answer session was held with certain 
representatives of the public display industry at their request. A 
total of 187 comments were received from individuals and organizations 
representing the scientific research community, public display 
industry, and conservation and animal protection interests. A 
discussion of and response to those comments is detailed below.
    The 1994 Amendments. The 1994 Amendments substantially revised the 
MMPA. The statutory changes to the MMPA that impact this final rule 
include: Statutorily defining the term harassment; providing a General 
Authorization for bona fide research involving only Level B harassment; 
waiving the public comment process for research permits to be issued 
under emergency situations; eliminating the

[[Page 21927]]

statutory restriction against duplication of scientific research 
projects; statutorily providing for the issuance of permits for 
purposes of educational and commercial photography; and substantial 
changes to the public display provisions of the Act, eliminating the 
basis for many of the provisions that had been included in the proposed 
rule.
    Response to 1993 Comments and Discussion of 1994 Amendments. Many 
commenters found the scope and organization of the proposed rule to be 
confusing, arguing that they had difficulty determining which 
regulations applied to their expressed interest.
    Organization. In the proposed rule, each regulatory section was 
subdivided into four categories: General (i.e., basic requirements 
applicable to all permits), Public display, Scientific research, and 
Enhancement. This required a reviewer to identify within each section, 
both the basic permit requirements and the requirements particular to 
their area of interest.
    In response, these final regulations have been significantly 
reorganized by removing non-statutory general conditions and reporting 
requirements from regulatory text; listing requirements basic to all 
permits in Secs. 216.33 through 216.40 (i.e., application procedures, 
issuance criteria, permit restrictions, conditions, reporting 
requirements, amendment procedures, and penalties); and providing the 
additional requirements applicable to each special exception purpose in 
separately identified sections (i.e., Sec. 216.41 contains the 
additional requirements for Scientific Research). The table of contents 
has been revised to include identification of sections reserved for 
future photography and public display regulations.
    A number of comments questioned why the proposed rule would amend 
the Pribilof Islands and northern fur seal regulations issued under the 
FSA (part 215). These regulations were included to reduce regulatory 
burden and confusion by consolidating, under the MMPA, the requirements 
contained under the FSA regarding the take, transportation, 
importation, exportation or possession of fur seals or their parts for 
educational, scientific or exhibition purposes. However, these changes 
to part 215 were included in the interim final rule for the General 
Authorization for bona fide scientific research (59 FR 50372 October 3, 
1994) and are, therefore, not included with this final rule.
    Disruption as a part of harassment. The proposed definition of 
harass drew general criticism over its inclusion of the term 
disruption. Commenters argued that, combined with the 1993 proposed 
appendix of approach guidelines and reporting requirements, inclusion 
of the term would create too much bureaucratic burden, over-reporting 
of takes, and stifle scientific research. Commenters also expressed 
concern that NMFS would not enforce the moratorium on taking against 
someone unintentionally harassing a marine mammal. Members of the 
public disrupting sea lions hauled-out at a public wharf were cited as 
an example. Although commenters did not believe NMFS would institute 
enforcement actions for such incidents of unintentional harassment, or 
that it was the intent of Congress to focus on such incidents, they 
were concerned that NMFS might impose a higher standard on researchers. 
The 1994 Amendments defined harassment, and it is that definition that 
is included in this rule (see Sec. 216.3 Definitions).
    Approach guidelines (Appendix B). In view of the statutory changes 
defining harassment, and in response to the comments, NMFS has 
eliminated the Appendix B listing of approach guidelines and will 
instead refer applicants to the appropriate regional office(s) to 
receive any approach guidelines developed for the species of marine 
mammals specific to that region.
    Reporting. Comments were generally critical of the reporting 
requirements regarding scientific research, arguing that the detail 
requested on behavioral responses was excessive, and the amount of data 
requested could compromise a researcher's ``stock-in-trade'' by forcing 
public documentation of data and information before it could be 
synthesized into published material.
    In conjunction with the previous discussion, NMFS points out that a 
recurring theme throughout the history of issuing permits for the 
harassment of marine mammals has been the need for objective standards 
for identifying stressful responses in marine mammals to activities and 
closeness of approach which harass them. Such standards would prove 
valuable in facilitating better management practices in the wild and 
controlling against activities which may be detrimental to individual 
marine mammals or their stocks. In an effort to maintain this aspect of 
the reporting requirements while at the same time easing burdens, the 
reporting requirements have been made more flexible by emphasizing 
summaries of information and researcher discretion for determining 
``noteworthy'' behavioral responses.
    General take category. Many comments expressed support for a 
general take category allowing for routine, non-invasive harassment for 
purposes of scientific research, photography and whale watching.
    The 1994 Amendments defined harassment and divided such takes into 
two levels of impact: Level A harassment has the potential to injure, 
and Level B harassment has only the potential to disturb (Sec. 216.3 
Definitions). Bona fide scientific research projects which do not 
exceed Level B harassment on species not listed under the ESA are 
eligible for authorization under the new General Authorization 
category. This authorization is a streamlined process without public 
comment for low levels of harassment (Level B). A final rule based on 
comments received on the interim final rule (59 FR 50372. October 3, 
1994) implementing the General Authorization now in effect, will be 
published separately in the Federal Register. The new permit category 
to harass marine mammals in the wild for purposes of educational and 
commercial photography also will allow only Level B harassment. A 
proposed rule for photography permits will be published in the Federal 
Register at a later date.
    With regard to whale watching, there is no statutory exception 
provided for observational cruise activities, however, such activities 
can be conducted carefully without harassing marine mammals. Therefore, 
NMFS will continue to inform prospective vessel operators of guidelines 
to follow in an effort to avoid harassment.
    Fees. A great deal of controversy was generated by NMFS' proposal 
to increase the fees for processing permits. Comments ranged from 
perceiving these fees as intentionally punitive against various 
permitted activities, to detailed suggestions for tiering the fees 
based on the type of permit, the level of staff review involved, and 
the financial disposition of the applicant.
    In view of the significant changes made to the public display 
provisions of the statute, the nominal fees associated with scientific 
research, and a complete absence of any likely consensus on the subject 
of scientific research fees, NMFS has eliminated the proposed fee 
structure. This issue may be reconsidered at some time in the future. 
In the interim, no fee will be charged for these special exception 
permits.
    Ethics of captivity. Many comments discussed the ethics of 
captivity, questioning the practice of holding marine mammals for 
public display and suggesting that a ban be placed on all captivity.
    Since the passage of the MMPA in 1972, Congress has recognized the

[[Page 21928]]

public display of marine mammals as an exception to the moratorium on 
taking. Congress continued to recognize public display in the 1994 
Amendments by continuing to provide for this activity in statute, and 
increasing significantly the authority and discretion of the public 
display industry over the marine mammals they hold.
    Appendix A and C. As proposed in 1993, an Appendix A was provided 
for listing the activities that would require a special exception 
permit. In addition, an Appendix C provided the application information 
anticipated for special exception permits. Due to the controversy 
generated by the proposed scale of fees and the corresponding 
activities listed in Appendix A, NMFS has eliminated Appendix A. NMFS 
has also eliminated Appendix C and on request will provide application 
instructions for each permit category.
    Bona fide scientific research (Sec. 216.3). A number of comments 
were critical of the proposed definition of bona fide scientific 
research, arguing that it extended unlimited discretion to NMFS for 
determining what was bona fide. The definition in the 1994 Amendments 
closely parallels the definition in the proposed rule. In practice, 
NMFS expects that the definition provides flexibility to an applicant 
rather than unlimited discretion to the agency.
    Custody (Sec. 216.3). In response to comments on the proposed 
definition, and in consideration of the extensive changes to the public 
display provisions by the 1994 Amendments, the definition of custody 
has been simplified.
    Humane (Sec. 216.3). Several comments were critical of the proposed 
definition of humane, arguing that the definitions utilized by the 
National Institutes of Health or American Veterinary Medicine 
Association should be adopted instead. In response, NMFS points out 
that the definition is essentially identical to the definition in the 
statute.
    Interactive program (Sec. 216.3). A number of comments expressed a 
range of concerns over the definition of interactive program. Some 
commenters stated that NMFS had no authority over these activities, 
while others urged the elimination of therapeutic swim programs due to 
lack of bona fide scientific research criteria. The 1994 Amendments 
eliminated MMPA's jurisdiction over these public display captive care 
and maintenance issues, eliminating the need to define interactive 
program.
    Public display (Sec. 216.3). A number of comments criticized the 
proposed definition of public display for being at odds with the MMPA 
and in violation of First Amendment rights by including the requirement 
for educational and conservation programs as part of the definition. It 
was suggested that the proposed definition parallel that contained in 
statute.
    There is no definition of public display contained in the statute. 
Rather, prior to the 1994 Amendments, public display was referred to in 
the context of issuing a permit for public display to an applicant 
which offers a program for education or conservation purposes that, 
based on professionally recognized standards of the public display 
community, is acceptable to the Secretary of Commerce (Secretary). In 
keeping with this reference, NMFS included in the proposed rule 
reference of these programs as part of the definition.
    The 1994 Amendments eliminated the requirement that public display 
education and conservation programs be acceptable to the Secretary. 
Public display education and conservation programs are now only subject 
to self-regulation. Accordingly, reference to education and 
conservation programs has been eliminated from the definition.
    Initial review process (Sec. 216.33(c)). A number of comments were 
critical of the initial review process, arguing that it provided NMFS 
an opportunity to reject a permit application before receiving the 
benefit of public comment. The purpose of the initial review is to 
ensure that an application is appropriate, valid, and complete prior to 
its publication for public review. Premature publication without 
benefit of such determination could expose the applicant and agency to 
unnecessary administrative burdens, delays, and public confusion.
    Adequate EA/EIS information (Sec. 216.33(c)). Several comments 
expressed confusion over the requirement that an applicant submit 
sufficient information to enable NMFS to determine whether the proposed 
activity will be categorically excluded from further environmental 
documentation under the National Environmental Policy Act of 1969 
(NEPA).
    NEPA applies to federally approved, initiated, or funded activities 
that impact the human environment. As such, it is necessary to retain 
this requirement of applicants in order to comply with NEPA. In an 
effort to provide regulatory ``one-stop-shopping'', NMFS is making 
every effort to include up front all requirements and provisions 
mandated by statute. Compliance with NEPA is a critical component of 
that process. As in the past, NMFS will make every effort to assist an 
applicant with NEPA compliance. Nevertheless, it is the responsibility 
of the applicant to consider the potential impacts of its proposed 
activity and provide the necessary information accordingly.
    Marine Mammal Commission's (MMC) failure to comment 
(Sec. 216.33(d)). Many comments were critical of the provision which 
would regard the MMC's failure to comment on an application as a 
recommendation to deny the permit. It was suggested that the failure to 
comment by the MMC should be regarded as a recommendation to issue, and 
that recommendations to deny a permit be available for review by the 
applicant.
    NMFS believes it would be inappropriate to default a no-comment to 
a recommendation status. However, in the same vein, NMFS recognizes the 
unfairness of defaulting to a denial status. In response, the 
recommendation to deny has been replaced with ``no objection to 
issuance'' (Sec. 216.33(d)(2)). With regard to comments received from 
the MMC on permit applications, these are a matter of public record and 
have always been available to anyone interested in reviewing them.
    Duplication. Several comments criticized proposed language 
controlling against unnecessary duplication of scientific research 
projects, pointing out that duplication is an important aspect of 
investigating the soundness of a hypothesis. This language was a direct 
implementation of statutory language which specified scientific 
research to ``not involve unnecessary duplication of research.''
    The 1994 Amendments struck from the statute the language 
restricting unnecessary duplication. Therefore, duplication is no 
longer a regulatory matter except as it relates to whether a proposed 
activity is bona fide scientific research, and the need to monitor 
against the cumulative impact of activities with the potential to 
exceed Level B harassment (Sec. 216.34(a)(4)).
    Notarized copy (Sec. 216.35(j)). A number of comments were critical 
over the requirement that an original or notarized copy of the special 
exception permit be in the possession of the permit holder during the 
time of the authorized special exception activity. This provision was 
argued as unnecessary and too restrictive. In reconsidering the value 
of this provision for purposes of enforcement against fraud, NMFS has 
determined that an original or a copy of an original will satisfy the 
intent behind this requirement and has revised the provision 
accordingly.
    Import and export (Sec. 216.37). A number of comments were critical 
of the

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provisions for regulating the import and export of marine mammal parts 
for scientific research, claiming that they were too bureaucratic and 
would stifle activities such as research and education. In addition, 
there was concern expressed over lost research opportunities and 
information due to the prohibition against importing marine mammal 
parts which resulted from a lethal activity otherwise prohibited under 
the Act (Sec. 216.41(c)(1)(v)).
    As originally mandated in 1972, the restriction against the import 
and export of marine mammal parts was designed to prevent the 
development of commercial markets for marine mammal parts or products 
derived therefrom. However, the circumstances of bona fide scientific 
research involving import and export of marine mammal parts are varied, 
making clarity in regulations difficult. In addition, previously only 
the export of ESA listed species and parts was prohibited. The 1994 
Amendments extended this prohibition to all marine mammals and marine 
mammal parts, except for the export of living marine mammals for 
purposes of public display.
    In response, NMFS has made every effort to implement the intent of 
the law without creating undue burden against scientific research 
activities by ensuring that adequate documentation is provided for a 
part's acquisition, location and possession. Flexibility has also been 
provided at the sole discretion of the Office Director regarding 
importation of parts for bona fide scientific research that may have 
resulted from prohibited activities. For example, as a general rule it 
is illegal to import parts that have been taken in violation of 
domestic and foreign law. However, acknowledging the research value of 
some of these parts, the Office Director may authorize their 
importation for bona fide scientific research purposes.
    Major and minor amendments (Sec. 216.39). Some confusion was 
expressed over the need to maintain a distinction between major and 
minor amendments, suggesting that all amendments be treated as major 
amendments, thereby reducing the confusion over the two terms. In 
response, NMFS believes that not all amendments should be required to 
go through a public review process, and that only those amendments that 
change elements of a permit which are statutorily highlighted as 
fundamental permit terms and conditions should be subject to public 
review (i.e., changes in: the number and species of marine mammals 
affected; the manner in which they are taken; the location; and the 
period of time the permit is valid). Other changes (i.e., minor 
amendments) are most appropriately addressed on a case-by-case basis 
between the permit holder and the Office Director without additional 
opportunity for public comment. Consistent with this policy, comments 
received, and in keeping with current administration of the program, 
the process for a hearing on a minor amendment as outlined in the 
proposed rule has been eliminated from this rule.
    Lethal take as critically important (Sec. 216.41(b)(2)). Several 
commenters criticized the use of the phrase ``critically important 
research need'' as being too ambiguous a requirement for research 
results involving lethal take. In response, NMFS notes that this 
language is taken directly from the statute, which remains unchanged by 
the 1994 Amendments.
    Publication of research results (Sec. 216.41(c)(1)(ii)). A number 
of commenters expressed concern over the requirement that research 
results be published within a ``reasonable period of time'', 
questioning what the agency would define as reasonable. In response, it 
would be arbitrary and impractical to define in advance what would 
constitute a reasonable period of time applicable to all circumstances. 
As such, NMFS has retained this requirement as a necessary 
characteristic of bona fide scientific research and would argue that by 
not defining what is reasonable the regulations provide adequate 
flexibility and deference to the researcher. In addition, Congress also 
recognized publication and availability of research results as 
necessary characteristics of bona fide scientific research by including 
these parameters in the new statutory definition of bona fide research 
(Sec. 216.3).
    Personnel experience and direct supervision (Secs. 216.35(f)-(g) 
and 216.41(c)). A number of comments expressed criticism of the 
requirements that all personnel conducting permitted activities under 
the authority of a scientific research permit must be directly 
supportive of and necessary for the permitted research activity. It was 
argued that this was a matter of internal personnel management and not 
an issue of regulatory concern. In addition, several commenters argued 
against the requirement that activities be conducted under the direct 
supervision of the principal investigator or a co-investigator, finding 
this to be too restrictive.
    In response, permits are issued based in significant part on the 
determination that the proposed activity is to be conducted by 
qualified individuals capable of accomplishing the activity, in this 
case bona fide scientific research. Much of that determination is 
necessarily based on the qualifications of the applicant, principal 
investigator (PI), co-investigator(s) and any supportive personnel 
listed to conduct work under the terms of the permit. As such, NMFS has 
retained this language and would note that discretion over personnel 
matters is left entirely to the applicant.
    Direct supervision over permitted activities by the PI or a co-
investigator has been retained by NMFS as a necessary requirement 
(Sec. 216.41(c)(1)(iii)). In the past, inexperienced personnel have 
conducted permitted activities involving the take, import or export of 
marine mammals without direct supervision and left a project vulnerable 
to criticism and litigation.
    It is important and reasonable to presume that the PI or a co-
investigator will be directly involved in the activity authorized under 
a permit. However, this requirement should in no way be construed as a 
``draconian effort'' to force critical research personnel to supervise 
the most routine of functions. Rather, it is intended to ensure the 
integrity of a bona fide research permit and the activities it has 
authorized. Qualified individuals may be designated in the permit as 
co-investigators to conduct, or directly supervise the conduct of, the 
taking, import and export activities authorized under a permit, but the 
PI is ultimately responsible for all such activities. To ensure that 
the roles and responsibilities of the PI and co-investigator(s) are 
clearly understood, definitions for both of these terms have been added 
(see Sec. 216.3).
    Prohibiting public display of marine mammals held for research 
(Sec. 216.41(c)(1)(vi)). A number of comments expressed concern over 
restricting the public display of marine mammals held for scientific 
research. Some comments identified specific instances in which research 
facilities display their marine mammals as a means of educating the 
public about the research and receiving donations for financial support 
of research projects.
    As scientific research and public display are recognized by statute 
as two separate activities, NMFS has retained this restriction as a 
necessary distinction between these activities. However, in response to 
concerns over the public viewing of marine mammals involved with 
research projects, the regulatory exceptions to this restriction 
clearly provide adequate flexibility to

[[Page 21930]]

allow such activities, under appropriate conditions, to occur under a 
scientific research permit.
    Marketable products (Sec. 216.41(c)(1)(vii)). One of the more 
contentious areas of comment was the prohibition against the commercial 
sale of products derived from activities conducted under a scientific 
research permit. Concern was primarily expressed by commercial entities 
specializing in photographic coverage of research. In addition, many 
criticized the proposed definition of marketable product as beyond the 
jurisdiction of NMFS.
    The proposed rule was in part driven by increasing reports and 
concerns about abuse of the scientific research permit system for 
commercial purposes. Although NMFS recognized the educational and 
scientific value of photographic coverage of marine mammals in 
conjunction with research, scientific research permits had, in some 
instances, been exploited for commercial purposes.
    The 1994 Amendments acknowledged the need to provide for 
photographic activities in a controlled manner by permitting low levels 
of harassment of marine mammals for the purposes of commercial and 
educational photography. This new provision eliminated the need for 
much of the restrictive language included in the proposed rule for 
scientific research as well as for the need to define marketable 
product.
    Permit conditions and reporting requirements. The regulatory text 
establishes permit-specific conditions and restrictions. By contrast, 
non-statutory general permit conditions and reporting requirements have 
been eliminated from the regulatory text. As a general rule, these 
general conditions and reporting requirements tend to vary given the 
nature of the permitted activity. Elimination of the permit conditions 
and reporting requirements provides NMFS with greater flexibility, 
allowing it to incorporate only those conditions and requirements that 
are appropriate to the permit. Appropriate general conditions and 
reporting requirements will be incorporated into the permit itself, and 
must be adhered to along with all other terms and conditions.
    Most of the general conditions and reporting requirements that may 
be incorporated into a permit issued under this subpart, appear below. 
Additionally, these conditions and requirements may also be obtained 
from NMFS upon request (see ADDRESSES).

Conditions and Reporting Requirements for All Permits Conditions

    1. The permit holder shall provide the Director (Regional Director) 
written notice of the date, time, and port at least one week in advance 
of any import or export, unless this notice is waived by the Regional 
Director in writing in advance.
    2. The permit holder shall not, in interstate or foreign commerce, 
deliver, receive, carry, transport, ship, purchase, or sell, or attempt 
any of the same, any threatened or endangered marine mammal species 
acquired under this subpart except with the prior approval of the 
Office Director and subject to any conditions the Office Director may 
prescribe.
    3. Upon request by the Office Director, the permit holder shall 
allow any employee of NOAA or any other person designated by the Office 
Director to inspect or observe the permit holder's records, facilities, 
marine mammals, marine mammal parts, and activities, and shall provide 
all additional information related to any inspection.
    4. If activities authorized under a special exception permit have 
adverse unforeseen effects on the ecosystem of which marine mammals are 
a part, the permit holder must suspend permitted activities and notify 
the Regional Director, and, if marine mammals are involved, the Office 
Director, of the circumstances and any relevant observations and 
recommendations. The permit holder shall not continue such permitted 
activities until specifically authorized by the Regional Director or, 
if marine mammals are involved, the Office Director.
    5. The Permit holder must immediately cease all permitted 
activities if so required by the Office Director on the basis of new 
information that demonstrates that the permitted activities may have an 
adverse effect on individual marine mammals, on the species or stock, 
or on the marine ecosystem, that was not anticipated at the time of 
permit issuance. Permitted activities may be resumed by the permit 
holder only upon specific authorization by the Office Director, and 
subject to any terms or conditions that the Office Director determines 
necessary, consistent with the provisions of 216.35.
    6. The permit holder shall participate in a cooperative endangered 
and threatened marine mammal breeding program if requested by the 
Office Director.
    7. When animal-specific information for live import or capture is 
not available at the time of permit issuance, the permit holder must 
request authorization by the Office Director prior to importing or 
initiating a capture activity for long-term or permanent captive 
maintenance (i.e., other than short-term capture and release) of a 
living marine mammal. The permit holder must:
    i. Request authorization to import or capture at least 30 days 
prior to the proposed importation or capture date;
    ii. Provide the proposed dates and, for imports, country of origin, 
port of entry, description of the marine mammals to be imported, and, 
for captures, the location of the capture and associated taking;
    iii. Identify the proposed method, including, but not limited to, a 
detailed description of the containers/devices to be used and any 
special care required, modes (i.e., aircraft, truck, other), duration 
(including any transfer points), and date of transport, and the 
attending veterinarian, or authorized support personnel of the permit 
holder knowledgeable in the area of marine mammal care for the species 
concerned, who will accompany the marine mammal; and
    iv. Provide a license and or registration issued by the Animal and 
Plant Health Inspection Service; a certification, to the satisfaction 
of the Office Director, that all applicable standards under the Animal 
Welfare Act will be complied with, and that any violations of those 
standards have been resolved and any required corrective actions taken, 
or will be within a period specified by the Office Director; and a 
certification from the responsible veterinarian that the transport will 
be conducted in compliance with the applicable standards of the Animal 
Welfare Act.

Reporting

    1. Annual reports. All permit holders shall file written annual 
reports with the Office Director. Annual reports shall provide 
information requested by the Office Director, and shall be filed on the 
date set forth in the permit. At the discretion of the Office Director, 
the reporting deadline may coincide with the end of the permit holder's 
fiscal year or research season.
    2. Special reports. Special reports include but are not limited to:
    a. Live captures. Where the permit authorizes a capture from the 
wild, the permit holder shall submit a written live capture report to 
the Office Director within 30 days of capture. The report shall set 
forth the time and specific location (i.e., latitude/longitude) of the 
capture, the number of marine mammals chased or detained incidental to

[[Page 21931]]

capture, and any deaths, injuries or complications that arose in 
connection with capture. For each marine mammal listed, the report must 
set forth the animal's size, age, sex, and reproductive condition.
    b. Lethal take. Where a lethal take is authorized under the permit, 
the permit holder shall submit a written report to the Office Director 
within 30 days of the authorized lethal take. Where an actual or 
presumed lethal take occurs inadvertent or incidental to permitted 
activities, the permit holder shall notify the Office Director within 
12 hours of the lethal take, or within 12 hours of return to port if 
the taking occurred at sea. This lethal take report or notification, as 
applicable, shall set forth the date, time, location, number, and, to 
the extent possible, age/size, sex, and reproductive condition of each 
animal killed. For inadvertent or incidental mortalities, notification 
shall also include the circumstances accompanying the incident and all 
actions taken to reduce the potential for future occurrences. A 
necropsy must be conducted and a report submitted if required by the 
Office Director.
    c. Initial importation of marine mammal parts. Within 30 days of 
the initial importation of any marine mammal part, the permit holder 
shall submit a written report to the Office Director. The report shall 
include a description of the part and the unique number assigned to the 
part.
    d. Transfer, export or re-importation of marine mammal parts. The 
permit holder shall provide written notification to the Regional 
Director within 30 days after any transfer, export, or re-import of a 
marine mammal part. Notification shall include: A description of the 
part and unique number; the person to whom the part was transferred, 
exported or reimported and, if applicable, the recipient's permit 
number; the purpose of the transfer, export or reimport; and, for 
transfers, certification that the recipient has agreed to comply with 
the requirements of Sec. 216.37(a) for subsequent transfers.
    e. Other. If the permit holder observes an unexpected event that 
may pose a significant adverse affect upon the health or welfare of a 
living marine mammal species subject to the permit, or the marine 
ecosystem of which they are a part, the permit holder shall submit a 
brief written report to the Office Director describing the 
circumstances concerned and all relevant observations or 
recommendations.

Additional Scientific Research and Enhancement Conditions and Reporting 
Requirements

Conditions

    In addition to those conditions detailed above, scientific research 
and enhancement permits are subject to the following conditions:
    1. Unless approved by the Office Director, the PI and co-
investigators identified in the permit shall not be changed. A request 
to change a co-investigator listed under the permit must be submitted 
by the permit holder and include a description of the activity to be 
conducted by the proposed co-investigator, the manner in which such 
activity is a part of the permitted activity, and information regarding 
the proposed co-investigator equivalent to that required for the PI in 
an initial application.
    2. The transfer and transport of marine mammals held for purposes 
of scientific research or enhancement must be authorized by NMFS.

Reporting

    In addition to the reporting requirements detailed above, 
scientific research and enhancement permits are subject to the 
following reporting requirements:
    1. Annual reports. For scientific research and enhancement permits, 
the annual report also shall include the following information:
    a. To the extent practicable, for each marine mammal taken, 
imported, exported, or otherwise affected pursuant to permitted 
activities: The species, age, size, sex, and reproductive condition of 
the animal; the date, location, and manner of taking, import, or 
export; and for tagged animals, the dates each animal was tagged and 
tracked;
    b. For each marine mammal part taken, imported, exported or 
otherwise affected pursuant to permitted activities, a description of 
the part and its assigned identification number;
    c. The personnel and vessels involved in the conduct of the 
permitted research or enhancement and their respective functions;
    d. For each marine mammal placed on public display: The name and 
location of the display facility; and the number of days the animal was 
displayed; and
    e. A summary of all research and enhancement activities conducted 
during the past year.
    2. Final reports. Scientific research and enhancement permit 
holders shall submit a final report to the Office Director within 180 
days of the last annual report. The final report shall include:
    a. A summary of all research or enhancement objectives, hypotheses, 
and testing (including methodology).
    b. A summary of results and the manner in which such results relate 
to the research or enhancement objectives;
    c. Where the authorized take, import, export or other activity 
involves a species or stock designated, or proposed to be designated, 
as depleted, endangered or threatened, an assessment of whether and how 
the scientific research or enhancement activity contributed to the 
achievement of any recovery objectives established for the species or 
stock.
    d. For scientific research: An indication of where and when the 
research findings will be published or otherwise made available to the 
public or scientific community;
    e. For enhancement: A description of the manner in which the 
enhancement program contributed significantly to maintaining or 
increasing distribution or abundance, enhanced the health or welfare of 
the species or stock, or was necessary to ensure the survival or 
recovery of the affected species or stock in the wild; and an 
assessment of the need for additional enhancement, along with specific 
recommendations;
    f. Where marine mammals designated as depleted, endangered, or 
threatened are held captive under an enhancement permit, the report 
shall describe the manner in which the captive maintenance has 
contributed directly to the survival or recovery of the species or 
stock; and
    g. A description of the disposition of any marine mammal parts, 
including an identification of the part as required in 
Sec. 216.37(a)(4) and the manner of disposition.
    3. Special reports. Information on marine mammals held captive must 
be submitted for purposes of the Marine Mammal Inventory. Such 
information includes animal-specific data when animals are initially 
obtained, and subsequent updates to be submitted for any changes in the 
captive holding status (i.e., animal identification, sex, estimated or 
actual birth date, date of acquisition or disposition by the permit 
holder, source of acquisition including location of the take from the 
wild if applicable, name of recipient if animal is transferred, 
notation if animal was acquired as the result of a stranding, date and 
cause of death, and prior notification of any sale, purchase, export, 
or transport). At the request of the Office Director, a necropsy report 
shall be submitted following report of a death.

[[Page 21932]]

Classification

    NMFS prepared an Environmental Assessment (EA) for the 1993 
proposed rule and concluded that this final rule will not significantly 
affect the human environment. Therefore, preparation of an 
Environmental Impact Statement on this action is not required by 
section 102(2) of NEPA or its implementing regulations. Copies of the 
EA remain available on request (see ADDRESSES). NEPA requirements as 
they pertain to individual permits that may be issued under these 
proposed regulations will be addressed on a case-by-case basis.
    This final rule has been determined to be not significant for 
purposes of E.O. 12866 and is consistent with the President's 
Regulatory Reform Initiative to reduce regulatory burden on the public. 
This rule clarifies current permitting procedures that were found not 
significant during the proposed stage.
    In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), an Initial Regulatory Flexibility Analysis (IRFA) was prepared 
and NMFS solicited comments in the proposed rule on the economic 
impacts to small business entities (available upon request (see 
ADDRESSES). The IRFA determined that the projected economic impact of 
the proposed revisions on affected small business entities would be 
primarily administrative, a combination of paperwork burden costs, 
permit fees (some of which would be greater than the fees under current 
permit regulations), and the proposed requirement of a surety bond for 
the care, maintenance, and disposition of captive marine mammals. NMFS 
believed that it was unlikely that significant economic impact would 
result from the requirements of the proposed regulations beyond the 
economic impacts associated with paperwork requirements, associated 
permit administration, and similar requirements imposed under existing 
regulations. However, sufficient financial and economic data was not 
available for NMFS to conduct an in-depth economic analysis, 
particularly in regards to the permit fees and surety bond requirement. 
NMFS sought comments on the anticipated economic effects during the 
public comment period. The comments submitted in response to this 
request addressed public display activities exclusively, which have 
been eliminated from this rule.
    Due to statutory changes made by Congress in the 1994 Amendments, 
significant portions of the proposed rule have been eliminated, 
including the collection of permit fees and the proposed requirement 
for surety bonds. In addition, activities involving the issuance of 
permits for purposes of public display were significantly reduced by 
the 1994 Amendments, further reducing any economic impact associated 
with paperwork costs contained in this final rule.
    As a result, the impact of this final rule on small business 
entities is primarily in the form of paperwork burdens. Paperwork 
requirements include permit applications and reports, which may be 
annual, special, and/or final. The projected economic impact on small 
business entities as a result of the paperwork requirements was 
estimated in the IRFA as a total of $123,260 annually for a universe of 
462 entities, or about $267.00 per entity, an amount not significant 
for purposes of the Regulatory Flexibility Act. Accordingly, the 
Assistant General Counsel for Legislation and Regulation of the 
Department of Commerce certified to the Chief Counsel for Advocacy of 
the Small Business Administration that this rule would not have a 
significant economic impact on a substantial number of small entities. 
As a result, a Final Regulatory Flexibility Analysis was not prepared.
    This rule contains collections of information subject to the 
Paperwork Reduction Act. The collection of this information has been 
approved by the Office of Management and Budget for special exception 
permits, OMB Control Number 0648-0084. The public burden for collection 
of this information is estimated to average 29 hours per response for 
permit applications and major amendment requests, 3 hours for minor 
amendments and authorization requests, and an average of 8 hours per 
response for various reporting requirements that range from 12 hours 
for scientific research annual reports to 2 hours for necropsies.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act unless that collection of information 
displays a currently valid OMB Control Number.
    NMFS has determined that these final regulations do not directly 
affect the coastal zone of any state with an approved coastal zone 
management program.
    Under NOAA Administrative Order 205-11, 7.01, dated December 17, 
1990, the Under Secretary for Oceans and Atmosphere has delegated to 
the Assistant Administrator for Fisheries, NOAA, the authority to sign 
material for publication in the Federal Register.

List of Subjects

15 CFR Part 902

    Reporting and recordkeeping requirements.

50 CFR Part 216

    Administrative practice and procedure, Exports, Imports, Indians, 
Marine mammals, Penalties, Reporting and recordkeeping requirements, 
Transportation.

50 CFR Part 222

    Administrative practice and procedure, Endangered and threatened 
species, Exports, Imports, Reporting and recordkeeping requirements, 
Transportation.

    Dated: May 6, 1996.
Gary Matlock,
Program Management Officer, National Marine Fisheries Service.

    For reasons set out in the preamble, 15 CFR chapter IX and, under 
the authority of 16 U.S.C. 1361 et seq., 50 CFR chapter II are amended 
as follows:

15 CFR CHAPTER IX

PART 902--NOAA INFORMATION COLLECTION REQUIREMENTS UNDER THE 
PAPERWORK REDUCTION ACT: OMB CONTROL NUMBERS

    1. The authority citation for part 902 continues to read as 
follows:

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

    2. In Sec. 902.1, paragraph (b) the table is amended by removing in 
the left column under 50 CFR, the entries ``216.24(d)'', ``216.31'', 
and ``222.23'', and in the right column, in corresponding positions, 
the control numbers; and by adding, in numerical order, the following 
entries to read as follows:


Sec. 902.1  OMB control numbers assigned pursuant to the Paperwork 
Reduction Act.

* * * * *
    (b) * * *

------------------------------------------------------------------------
     CFR part or section where the                                      
 information collection requirement is   Current OMB control number (all
                located                     numbers begin with  0648-)  
------------------------------------------------------------------------
                                                                        
                  *        *        *        *        *                 
50 CFR:                                                                 
                                                                        
                  *        *        *        *        *                 
  216.24(d)............................  -0099 and -0217                
                                                                        
                  *        *        *        *        *                 
  216.27...............................  -0084                          
  216.37...............................  -0084                          

[[Page 21933]]

                                                                        
  216.38...............................  -0084                          
  216.39...............................  -0084                          
  216.41...............................  -0084                          
                                                                        
                  *        *        *        *        *                 
------------------------------------------------------------------------



50 CFR CHAPTER II

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

    3. The authority citation for part 216 continues to read as 
follows:

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

    4. In Sec. 216.3, definitions for ``Co-investigator'', ``Custody'', 
``Facility'', ``Humane'', ``Intrusive research'', ``Principal 
investigator'', ``Public display'', and ``Rehabilitation'' are added in 
alphabetical order, and the definition of ``Soft part'' is revised to 
read as follows:


Sec. 216.3  Definitions.

* * * * *
    Co-investigator means the on-site representative of a principal 
investigator.
* * * * *
    Custody means holding a live marine mammal pursuant to the 
conditional authority granted under the MMPA, and the responsibility 
therein for captive maintenance of the marine mammal.
* * * * *
    Facility means, in the context specific to captive marine mammals,: 
(1) One or more permanent primary enclosures used to hold marine 
mammals captive (i.e., pools, lagoons) and associated infrastructure 
(i.e., equipment and supplies necessary for the care and maintenance of 
marine mammals) where these enclosures are either located within the 
boundaries of a single contiguous parcel of land and water, or are 
grouped together within the same general area within which enclosure-
to-enclosure transport is expected to be completed in less than one 
hour; or
    (2) A traveling display/exhibit, where the enclosure(s) and 
associated infrastructure is transported together with the marine 
mammals.
* * * * *
    Humane means the method of taking, import, export, or other 
activity which involves the least possible degree of pain and suffering 
practicable to the animal involved.
* * * * *
    Intrusive research means a procedure conducted for bona fide 
scientific research involving: A break in or cutting of the skin or 
equivalent, insertion of an instrument or material into an orifice, 
introduction of a substance or object into the animal's immediate 
environment that is likely either to be ingested or to contact and 
directly affect animal tissues (i.e., chemical substances), or a 
stimulus directed at animals that may involve a risk to health or 
welfare or that may have an impact on normal function or behavior 
(i.e., audio broadcasts directed at animals that may affect behavior). 
For captive animals, this definition does not include:
    (1) A procedure conducted by the professional staff of the holding 
facility or an attending veterinarian for purposes of animal husbandry, 
care, maintenance, or treatment, or a routine medical procedure that, 
in the reasonable judgment of the attending veterinarian, would not 
constitute a risk to the health or welfare of the captive animal; or
    (2) A procedure involving either the introduction of a substance or 
object (i.e., as described in this definition) or a stimulus directed 
at animals that, in the reasonable judgment of the attending 
veterinarian, would not involve a risk to the health or welfare of the 
captive animal.
* * * * *
    Principal investigator means the individual primarily responsible 
for the taking, importation, export, and any related activities 
conducted under a permit issued for scientific research or enhancement 
purposes.
    Public display means an activity that provides opportunities for 
the public to view living marine mammals at a facility holding marine 
mammals captive.
* * * * *
    Rehabilitation means treatment of beached and stranded marine 
mammals taken under section 109(h)(1) of the MMPA or imported under 
section 109(h)(2) of the MMPA, with the intent of restoring the marine 
mammal's health and, if necessary, behavioral patterns.
* * * * *
    Soft part means any marine mammal part that is not a hard part. 
Soft parts do not include urine or fecal material.
* * * * *
    5. In Sec. 216.13, the section heading is revised and paragraph (d) 
is added to read as follows:


Sec. 216.13   Prohibited uses, possession, transportation, sales, and 
permits.

* * * * *
    (d) Any person to violate any term, condition, or restriction of 
any permit issued by the Secretary.
    6. In Sec. 216.26, the section heading and paragraphs (b), (c), and 
(d) are revised and the introductory text to the section and paragraph 
(e) are added to read as follows:


Sec. 216.26   Collection of certain marine mammal parts without prior 
authorization.

    Notwithstanding any other provision of this subpart:
* * * * *
    (b) Notwithstanding the provisions of subpart D, soft parts that 
are sloughed, excreted, or discharged naturally by a living marine 
mammal in the wild may be collected or imported for bona fide 
scientific research and enhancement, provided that collection does not 
involve the taking of a living marine mammal in the wild.
    (c) Any marine mammal part collected under paragraph (a) of this 
section or any marine mammal part collected and imported under 
paragraph (b) of this section must be registered and identified, and 
may be transferred or otherwise possessed, in accordance with 
Sec. 216.22(c). In registering a marine mammal part collected or 
imported under paragraph (b) of this section, the person who collected 
or imported the part must also state the scientific research or 
enhancement purpose for which the part was collected or imported.
    (d) No person may purchase, sell or trade for commercial purposes 
any marine mammal part collected or imported under this section.
    (e) The export of parts collected without prior authorization under 
paragraph (b) of this section may occur if consistent with the 
provisions at Sec. 216.37(d) under subpart D.
    7. In subpart C, Sec. 216.27 is added to read as follows:


Sec. 216.27   Release, non-releasability, and disposition under special 
exception permits for rehabilitated marine mammals.

    (a) Release requirements. (1) Any marine mammal held for 
rehabilitation must be released within six months of capture or import 
unless the attending veterinarian determines that:
    (i) The marine mammal might adversely affect marine mammals in the 
wild;
    (ii) Release of the marine mammal to the wild will not likely be 
successful given the physical condition and behavior of the marine 
mammal; or
    (iii) More time is needed to determine whether the release of the 
marine mammal to the wild will likely be successful. Releasability must 
be

[[Page 21934]]

reevaluated at intervals of no less than six months until 24 months 
from capture or import, at which time there will be a rebuttable 
presumption that release into the wild is not feasible.
    (2) The custodian of the rehabilitated marine mammal shall provide 
written notification prior to any release into the wild.
    (i) Notification shall be provided to:
    (A) The NMFS Regional Director at least 15 days in advance of 
releasing any beached or stranded marine mammal, unless advance notice 
is waived in writing by the Regional Director; or
    (B) The Office Director at least 30 days in advance of releasing 
any imported marine mammal.
    (ii) Notification shall include the following:
    (A) A description of the marine mammal, including its physical 
condition and estimated age;
    (B) The date and location of release; and
    (C) The method and duration of transport prior to release.
    (3) The Regional Director, or the Office Director as appropriate, 
may:
    (i) Require additional information prior to any release;
    (ii) Change the date or location of release, or the method or 
duration of transport prior to release;
    (iii) Impose additional conditions to improve the likelihood of 
success or to monitor the success of the release; or
    (iv) Require other disposition of the marine mammal.
    (4) All marine mammals must be released near wild populations of 
the same species, and stock if known, unless a waiver is granted by the 
Regional Director or the Office Director.
    (5) All marine mammals released must be tagged or marked in a 
manner acceptable to the Regional Director or the Office Director. The 
tag number or description of the marking must be reported to the 
Regional Director or Office Director following release.
    (b) Non-releasability and postponed determinations. (1) The 
attending veterinarian shall provide the Regional Director or Office 
Director with a written report setting forth the basis of any 
determination under paragraphs (a)(1)(i) through (iii) of this section.
    (2) Upon receipt of a report under paragraph (b)(1) of this 
section, the Regional Director or Office Director, in their sole 
discretion, may:
    (i) Order the release of the marine mammal;
    (ii) Order continued rehabilitation for an additional 6 months; or
    (iii) Order other disposition as authorized.
    (3) No later than 30 days after a marine mammal is determined 
unreleasable in accordance with paragraphs (a)(1)(i) through (iii) of 
this section, the person with authorized custody must:
    (i) Request authorization to retain or transfer custody of the 
marine mammal in accordance with paragraph (c) of this section, or;
    (ii) Humanely euthanize the marine mammal or arrange any other 
disposition of the marine mammal authorized by the Regional Director or 
Office Director.
    (4) Notwithstanding any of the provisions of this section, the 
Office Director may require use of a rehabilitated marine mammal for 
any activity authorized under subpart D in lieu of animals taken from 
the wild.
    (5) Any rehabilitated beached or stranded marine mammal placed on 
public display following a non-releasability determination under 
paragraph (a)(1) of this section and pending disposition under 
paragraph (c) of this section, or any marine mammal imported for 
medical treatment otherwise unavailable and placed on public display 
pending disposition after such medical treatment is concluded, must be 
held in captive maintenance consistent with all requirements for public 
display.
    (c) Disposition for a special exception purpose. (1) Upon receipt 
of an authorization request made under paragraph (b)(3)(i) of this 
section, or release notification under (a)(2), the Office Director may 
authorize the retention or transfer of custody of the marine mammal for 
a special exception purpose authorized under subpart D.
    (2) The Office Director will first consider requests from a person 
authorized to hold the marine mammal for rehabilitation. The Office 
Director may authorize such person to retain or transfer custody of the 
marine mammal for scientific research, enhancement, or public display 
purposes.
    (3) The Office Director may authorize retention or transfer of 
custody of the marine mammal only if:
    (i) Documentation has been submitted to the Office Director that 
the person retaining the subject animal or the person receiving custody 
of the subject animal by transfer, hereinafter referred to as the 
recipient, complies with public display requirements of 16 U.S.C. 
1374(c)(2)(A) or, for purposes of scientific research and enhancement, 
holds an applicable permit, or an application for such a special 
exception permit under Sec. 216.33 or a request for a major amendment 
under Sec. 216.39 has been submitted to the Office Director and has 
been found complete;
    (ii) The recipient agrees to hold the marine mammal in conformance 
with all applicable requirements and standards; and
    (iii) The recipient acknowledges that the marine mammal is subject 
to seizure by the Office Director:
    (A) If, at any time pending issuance of the major amendment or 
permit, the Office Director determines that seizure is necessary in the 
interest of the health or welfare of the marine mammal;
    (B) If the major amendment or permit is denied; or
    (C) If the recipient is issued a notice of violation and 
assessment, or is subject to permit sanctions, in accordance with 15 
CFR part 904.
    (4) There shall be no remuneration associated with any transfer, 
provided that, the transferee may reimburse the transferor for any and 
all costs associated with the rehabilitation and transport of the 
marine mammal.
    (5) Marine mammals undergoing rehabilitation or pending disposition 
under this section shall not be subject to public display, unless such 
activities are specifically authorized by the Regional Director or the 
Office Director, and conducted consistent with the requirements 
applicable to public display. Such marine mammals shall not be trained 
for performance or be included in any aspect of a program involving 
interaction with the public; and
    (6) Marine mammals undergoing rehabilitation shall not be subject 
to intrusive research, unless such activities are specifically 
authorized by the Office Director in consultation with the Marine 
Mammal Commission and its Committee of Scientific Advisors on Marine 
Mammals, and are conducted pursuant to a scientific research permit.
    (d) Reporting. In addition to the report required under 
Sec. 216.22(b), the person authorized to hold marine mammals for 
rehabilitation must submit reports to the Regional Director or Office 
Director regarding release or other disposition. These reports must be 
provided in the form and frequency specified by the Regional Director 
or Office Director.
    8. In subpart D, Secs. 216.31 through 216.34 are revised; 
Secs. 216.35 through 216.44 are added; and Sec. 216.30 and Secs. 216.46 
through 216.49 are added and reserved to read as follows:

Subpart D--Special Exception Permits

216.30  [Reserved]
216.31  Definitions.
216.32  Scope.
216.33  Permit application submission, review, and decision 
procedures.
216.34  Issuance criteria.
216.35  Permit restrictions.
216.36  Permit conditions.

[[Page 21935]]

216.37  Marine mammal parts.
216.38  Reporting.
216.39  Permit amendments.
216.40  Penalties and permit sanctions.
216.41  Permits for scientific research and enhancement.
216.42  Photography. [Reserved]
216.43  Public display. [Reserved]
216.44  Applicability/transition.
216.45  General authorization.
216.46-216.49  [Reserved]


Sec. 216.30   [Reserved]


Sec. 216.31   Definitions.

    For the purpose of this subpart, the definitions set forth in 50 
CFR part 217 shall apply to all threatened and endangered marine 
mammals, unless a more restrictive definition exists under the MMPA or 
part 216.


Sec. 216.32   Scope.

    The regulations of this subpart apply to:
    (a) All marine mammals and marine mammal parts taken or born in 
captivity after December 20, 1972; and
    (b) All marine mammals and marine mammal parts that are listed as 
threatened or endangered under the ESA.


Sec. 216.33   Permit application submission, review, and decision 
procedures.

    (a) Application submission. Persons seeking a special exemption 
permit under this subpart must submit an application to the Office 
Director. The application must be signed by the applicant, and provide 
in a properly formatted manner all information necessary to process the 
application. Written instructions addressing information requirements 
and formatting may be obtained from the Office Director upon request.
    (b) Applications to export living marine mammals. For applicants 
seeking a special exception permit to export living marine mammals, the 
application must:
    (1) Be submitted through the Convention on International Trade in 
Endangered Fauna and Flora management authority of the foreign 
government or, if different, the appropriate agency or agencies of the 
foreign government that exercises oversight over marine mammals.
    (2) Include a certification from the foreign government that:
    (i) The information set forth in the application is accurate;
    (ii) The laws and regulations of the foreign governmentinvolved 
allow enforcement of the terms and conditions of the permit, and that 
the foreign government will enforce all terms and conditions; and
    (iii) The foreign government involved will afford comity to any 
permit amendment, modification, suspension or revocation decision.
    (c) Initial review. (1) NMFS will notify the applicant of receipt 
of the application.
    (2) During the initial review, the Office Director will determine:
    (i) Whether the application is complete.
    (ii) Whether the proposed activity is for purposes authorized under 
this subpart.
    (iii) If the proposed activity is for enhancement purposes, whether 
the species or stock identified in the application is in need of 
enhancement for its survival or recovery and whether the proposed 
activity will likely succeed in its objectives.
    (iv) Whether the activities proposed are to be conducted consistent 
with the permit restrictions and permit specific conditions as 
described in Sec. 216.35 and Sec. 216.36(a).
    (v) Whether sufficient information is included regarding the 
environmental impact of the proposed activity to enable the Office 
Director:
    (A) To make an initial determination under the National 
Environmental Policy Act (NEPA) as to whether the proposed activity is 
categorically excluded from preparation of further environmental 
documentation, or whether the preparation of an environmental 
assessment (EA) or environmental impact statement (EIS) is appropriate 
or necessary; and
    (B) To prepare an EA or EIS if an initial determination is made by 
the Office Director that the activity proposed is not categorically 
excluded from such requirements.
    (3) The Office Director may consult with the Marine Mammal 
Commission (Commission) and its Committee of Scientific Advisors on 
Marine Mammals (Committee) in making these initial, and any subsequent, 
determinations.
    (4) Incomplete applications will be returned with explanation. If 
the applicant fails to resubmit a complete application or correct the 
identified deficiencies within 60 days, the application will be deemed 
withdrawn. Applications that propose activities inconsistent with this 
subpart will be returned with explanation, and will not be considered 
further.
    (d) Notice of receipt and application review. (1) Upon receipt of a 
valid, complete application, and the preparation of any NEPA 
documentation that has been determined initially to be required, the 
Office Director will publish a notice of receipt in the Federal 
Register. The notice will:
    (i) Summarize the application, including:
    (A) The purpose of the request;
    (B) The species and number of marine mammals;
    (C) The type and manner of special exception activity proposed;
    (D) The location(s) in which the marine mammals will be taken, from 
which they will be imported, or to which they will be exported; and
    (E) The requested period of the permit.
    (ii) List where the application is available for review.
    (iii) Invite interested parties to submit written comments 
concerning the application within 30 days of the date of the notice.
    (iv) Include a NEPA statement that an initial determination has 
been made that the activity proposed is categorically excluded from the 
requirement to prepare an EA or EIS, that an EA was prepared resulting 
in a finding of no significant impact, or that a final EIS has been 
prepared and is available for review.
    (2) The Office Director will forward a copy of the complete 
application to the Commission for comment. If no comments are received 
within 45 days (or such longer time as the Office Director may 
establish) the Office Director will consider the Commission to have no 
objection to issuing a permit.
    (3) The Office Director may consult with any other person, 
institution, or agency concerning the application.
    (4) Within 30 days of publication of the notice of receipt in the 
Federal Register, any interested party may submit written comments or 
may request a public hearing on the application.
    (5) If the Office Director deems it advisable, the Office Director 
may hold a public hearing within 60 days of publication of the notice 
of receipt in the Federal Register. Notice of the date, time, and place 
of the public hearing will be published in the Federal Register not 
less than 15 days in advance of the public hearing. Any interested 
person may appear in person or through representatives and may submit 
any relevant material, data, views, or comments. A summary record of 
the hearing will be kept.
    (6) The Office Director may extend the period during which any 
interested party may submit written comments. Notice of the extension 
must be published in the Federal Register within 60 days of publication 
of the notice of receipt in the Federal Register.

[[Page 21936]]

    (7) If, after publishing a notice of receipt, the Office Director 
determines on the basis of new information that an EA or EIS must be 
prepared, the Office Director must deny the permit unless an EA is 
prepared with a finding of no significant impact. If a permit is denied 
under these circumstances the application may be resubmitted with 
information sufficient to prepare an EA or EIS, and will be processed 
as a new application.
    (e) Issuance or denial procedures. (1) Within 30 days of the close 
of the public hearing or, if no public hearing is held, within 30 days 
of the close of the public comment period, the Office Director will 
issue or deny a special exception permit.
    (2) The decision to issue or deny a permit will be based upon:
    (i) All relevant issuance criteria set forth at Sec. 216.34;
    (ii) All purpose-specific issuance criteria as appropriate set 
forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (iii) All comments received or views solicited on the permit 
application; and
    (iv) Any other information or data that the Office Director deems 
relevant.
    (3) If the permit is issued, upon receipt, the holder must date and 
sign the permit, and return a copy of the original to the Office 
Director. The permit shall be effective upon the permit holder's 
signing of the permit. In signing the permit, the holder:
    (i) Agrees to abide by all terms and conditions set forth in the 
permit, and all restrictions and relevant regulations under this 
subpart; and
    (ii) Acknowledges that the authority to conduct certain activities 
specified in the permit is conditional and subject to authorization by 
the Office Director.
    (4) Notice of the decision of the Office Director shall be 
published in the Federal Register within 10 days after the date of 
permit issuance or denial and shall indicate where copies of the 
permit, if issued, may be reviewed or obtained. If the permit issued 
involves marine mammals listed as endangered or threatened under the 
ESA, the notice shall include a finding by the Office Director that the 
permit:
    (i) Was applied for in good faith;
    (ii) If exercised, will not operate to the disadvantage of such 
endangered or threatened species; and
    (iii) Is consistent with the purposes and policy set forth in 
section 2 of the ESA.
    (5) If the permit is denied, the Office Director shall provide the 
applicant with an explanation for the denial.
    (6) Under the MMPA, the Office Director may issue a permit for 
scientific research before the end of the public comment period if 
delaying issuance could result in injury to a species, stock, or 
individual, or in loss of unique research opportunities. The Office 
Director also may waive the 30-day comment period required under the 
ESA in an emergency situation where the health or life of an endangered 
or threatened marine mammal is threatened and no reasonable alternative 
is available. If a permit is issued under these circumstances, notice 
of such issuance before the end of the comment period shall be 
published in the Federal Register within 10 days of issuance.
    (7) The applicant or any party opposed to a permit may seek 
judicial review of the terms and conditions of such permit or of a 
decision to deny such permit. Review may be obtained by filing a 
petition for review with the appropriate U.S. District Court as 
provided for by law.


Sec. 216.34  Issuance criteria.

    (a) For the Office Director to issue any permit under this subpart, 
the applicant must demonstrate that:
    (1) The proposed activity is humane and does not present any 
unnecessary risks to the health and welfare of marine mammals;
    (2) The proposed activity is consistent with all restrictions set 
forth at Sec. 216.35 and any purpose-specific restrictions as 
appropriate set forth at Sec. 216.41, Sec. 216.42, and Sec. 216.43;
    (3) The proposed activity, if it involves endangered or threatened 
marine mammals, will be conducted consistent with the purposes and 
policies set forth in section 2 of the ESA;
    (4) The proposed activity by itself or in combination with other 
activities, will not likely have a significant adverse impact on the 
species or stock;
    (5) Whether the applicant's expertise, facilities, and resources 
are adequate to accomplish successfully the objectives and activities 
stated in the application;
    (6) If a live animal will be held captive or transported, the 
applicant's qualifications, facilities, and resources are adequate for 
the proper care and maintenance of the marine mammal; and
    (7) Any requested import or export will not likely result in the 
taking of marine mammals or marine mammal parts beyond those authorized 
by the permit.
    (b) The opinions or views of scientists or other persons or 
organizations knowledgeable of the marine mammals that are the subject 
of the application or of other matters germane to the application will 
be considered.


Sec. 216.35  Permit restrictions.

    The following restrictions shall apply to all permits issued under 
this subpart:
    (a) The taking, importation, export, or other permitted activity 
involving marine mammals and marine mammal parts shall comply with the 
regulations of this subpart.
    (b) The maximum period of any special exception permit issued, or 
any major amendment granted, is five years from the effective date of 
the permit or major amendment. In accordance with the provisions of 
Sec. 216.39, the period of a permit may be extended by a minor 
amendment up to 12 months beyond that established in the original 
permit.
    (c) Except as provided for in Sec. 216.41(c)(1)(v), marine mammals 
or marine mammal parts imported under the authority of a permit must be 
taken or imported in a humane manner, and in compliance with the Acts 
and any applicable foreign law. Importation of marine mammals and 
marine mammal parts is subject to the provisions of 50 CFR part 14.
    (d) The permit holder shall not take from the wild any marine 
mammal which at the time of taking is either unweaned or less than 
eight months old, or is a part of a mother-calf/pup pair, unless such 
take is specifically authorized in the conditions of the special 
exception permit. Additionally, the permit holder shall not import any 
marine mammal that is pregnant or lactating at the time of taking or 
import, or is unweaned or less than eight months old unless such import 
is specifically authorized in the conditions of the special exception 
permit.
    (e) Captive marine mammals shall not be released into the wild 
unless specifically authorized by the Office Director under a 
scientific research or enhancement permit.
    (f) The permit holder is responsible for all activities of any 
individual who is operating under the authority of the permit;
    (g) Individuals conducting activities authorized under the permit 
must possess qualifications commensurate with their duties and 
responsibilities, or must be under the direct supervision of a person 
with such qualifications;
    (h) Persons who require state or Federal licenses to conduct 
activities authorized under the permit must be duly licensed when 
undertaking such activities;
    (i) Special exception permits are not transferable or assignable to 
any other person, and a permit holder may not require any direct or 
indirect compensation from another person in return for requesting 
authorization for such person to conduct the taking,

[[Page 21937]]

import, or export activities authorized under the subject permit;
    (j) The permit holder or designated agent shall possess a copy of 
the permit when engaged in a permitted activity, when the marine mammal 
is in transit incidental to such activity, and whenever marine mammals 
or marine mammal parts are in the possession of the permit holder or 
agent. A copy of the permit shall be affixed to any container, package, 
enclosure, or other means of containment, in which the marine mammals 
or marine mammal parts are placed for purposes of transit, supervision, 
or care. For marine mammals held captive and marine mammal parts in 
storage, a copy of the permit shall be kept on file in the holding or 
storage facility.


Sec. 216.36  Permit conditions.

    (a) Specific conditions. (1) Permits issued under this subpart 
shall contain specific terms and conditions deemed appropriate by the 
Office Director, including, but not limited to:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which marine mammals may be taken according to 
type of take;
    (iii) The location(s) in which the marine mammals may be taken, 
from which they may be imported, or to which they may be exported, as 
applicable, and, for endangered or threatened marine mammal species to 
be imported or exported, the port of entry or export;
    (iv) The period during which the permit is valid.
    (2) [Reserved]
    (b) Other conditions. In addition to the specific conditions 
imposed pursuant to paragraph (a) of this section, the Office Director 
shall specify any other permit conditions deemed appropriate.


Sec. 216.37  Marine mammal parts.

    With respect to marine mammal parts acquired by take or import 
authorized under a permit issued under this subpart:
    (a) Marine mammal parts are transferrable if:
    (1) The person transferring the part receives no remuneration of 
any kind for the marine mammal part;
    (2) The person receiving the marine mammal part is:
    (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any 
other governmental agency with conservation and management 
responsibilities, who receives the part in the course of their official 
duties;
    (ii) A holder of a special exception permit which authorizes the 
take, import, or other activity involving the possession of a marine 
mammal part of the same species as the subject part; or
    (iii) In the case of marine mammal parts from a species that is not 
depleted, endangered or threatened, a person who is authorized under 
section 112(c) of the MMPA and subpart C of this part to take or import 
marine mammals or marine mammal parts;
    (iv) Any other person specifically authorized by the Regional 
Director, consistent with the requirements of paragraphs (a)(1) and 
(a)(3) through (6) of this section.
    (3) The marine mammal part is transferred for the purpose of 
scientific research, maintenance in a properly curated, professionally 
accredited scientific collection, or education, provided that, for 
transfers for educational purposes, the recipient is a museum, 
educational institution or equivalent that will ensure that the part is 
available to the public as part of an educational program;
    (4) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal part or container;
    (5) The person receiving the marine mammal part agrees that, as a 
condition of receipt, subsequent transfers may only occur subject to 
the provisions of paragraph (a) of this section; and
    (6) Within 30 days after the transfer, the person transferring the 
marine mammal part notifies the Regional Director of the transfer, 
including a description of the part, the person to whom the part was 
transferred, the purpose of the transfer, certification that the 
recipient has agreed to comply with the requirements of paragraph (a) 
of this section for subsequent transfers, and, if applicable, the 
recipient's permit number.
    (b) Marine mammal parts may be loaned to another person for a 
purpose described in paragraph (a)(3) of this section and without the 
agreement and notification required under paragraphs (a)(5) and (6) of 
this section, if:
    (1) A record of the loan is maintained; and
    (2) The loan is for not more than one year. Loans for a period 
greater than 12 months, including loan extensions or renewals, require 
notification of the Regional Director under paragraph (a)(6).
    (c) Unless other disposition is specified in the permit, a holder 
of a special exception permit may retain marine mammal parts not 
destroyed or otherwise disposed of during or after a scientific 
research or enhancement activity, if such marine mammal parts are:
    (1) Maintained as part of a properly curated, professionally 
accredited collection; or
    (2) Made available for purposes of scientific research or 
enhancement at the request of the Office Director.
    (d) Marine mammal parts may be exported and subsequently reimported 
by a permit holder or subsequent authorized recipient, for the purpose 
of scientific research, maintenance in a properly curated, 
professionally accredited scientific collection, or education, provided 
that:
    (1) The permit holder or other person receives no remuneration for 
the marine mammal part;
    (2) A unique number assigned by the permit holder is marked on or 
affixed to the marine mammal specimen or container;
    (3) The marine mammal part is exported or reimported in compliance 
with all applicable domestic and foreign laws;
    (4) If exported or reimported for educational purposes, the 
recipient is a museum, educational institution, or equivalent that will 
ensure that the part is available to the public as part of an 
educational program; and
    (5) Special reports are submitted within 30 days after both export 
and reimport as required by the Office Director under Sec. 216.38.


Sec. 216.38   Reporting.

    All permit holders must submit annual, final, and special reports 
in accordance with the requirements established in the permit, and any 
reporting format established by the Office Director.


Sec. 216.39  Permit amendments.

    (a) General. Special exception permits may be amended by the Office 
Director. Major and minor amendments may be made to permits in response 
to, or independent of, a request from the permit holder. Amendments 
must be consistent with the Acts and comply with the applicable 
provisions of this subpart.
    (1) A ``major amendment'' means any change to the permit specific 
conditions under Sec. 216.36(a) regarding:
    (i) The number and species of marine mammals that are authorized to 
be taken, imported, exported, or otherwise affected;
    (ii) The manner in which these marine mammals may be taken, 
imported, exported, or otherwise affected, if the proposed change may 
result in an increased level of take or risk of adverse impact;

[[Page 21938]]

    (iii) The location(s) in which the marine mammals may be taken, 
from which they may be imported, and to which they may be exported, as 
applicable; and
    (iv) The duration of the permit, if the proposed extension would 
extend the duration of the permit more than 12 months beyond that 
established in the original permit.
    (2) A ``minor amendment'' means any amendment that does not 
constitute a major amendment.
    (b) Amendment requests and proposals. (1) Requests by a permit 
holder for an amendment must be submitted in writing and include the 
following:
    (i) The purpose and nature of the amendment;
    (ii) Information, not previously submitted as part of the permit 
application or subsequent reports, necessary to determine whether the 
amendment satisfies all issuance criteria set forth at Sec. 216.34, 
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
    (iii) Any additional information required by the Office Director 
for purposes of reviewing the proposed amendment.
    (2) If an amendment is proposed by the Office Director, the permit 
holder will be notified of the proposed amendment, together with an 
explanation.
    (c) Review of proposed amendments. (1) Major amendments. The 
provisions of Sec. 216.33(d) and (e) governing notice of receipt, 
review and decision shall apply to all proposed major amendments.
    (2) Minor amendments. (i) After reviewing all appropriate 
information, the Office Director will provide the permit holder with 
written notice of the decision on a proposed or requested amendment, 
together with an explanation for the decision.
    (ii) If the minor amendment extends the duration of the permit 12 
months or less from that established in the original permit, notice of 
the minor amendment will be published in the Federal Register within 10 
days from the date of the Office Director's decision.
    (iii) A minor amendment will be effective upon a final decision by 
the Office Director.


Sec. 216.40   Penalties and permit sanctions.

    (a) Any person who violates any provision of this subpart or permit 
issued thereunder is subject to civil and criminal penalties, permit 
sanctions and forfeiture as authorized under the Acts, and 15 CFR part 
904.
    (b) All special exception permits are subject to suspension, 
revocation, modification and denial in accordance with the provisions 
of subpart D of 15 CFR part 904.


Sec. 216.41   Permits for scientific research and enhancement.

    In addition to the requirements under Sec. 216.33 through 
Sec. 216.38, permits for scientific research and enhancement are 
governed by the following requirements:
    (a) Applicant. (1) For each application submitted under this 
section, the applicant shall be the principal investigator responsible 
for the overall research or enhancement activity. If the research or 
enhancement activity will involve a periodic change in the principal 
investigator or is otherwise controlled by and dependent upon another 
entity, the applicant may be the institution, governmental entity, or 
corporation responsible for supervision of the principal investigator.
    (2) For any scientific research involving captive maintenance, the 
application must include supporting documentation from the person 
responsible for the facility or other temporary enclosure.
    (b) Issuance Criteria. For the Office Director to issue any 
scientific research or enhancement permit, the applicant must 
demonstrate that:
    (1) The proposed activity furthers a bona fide scientific or 
enhancement purpose;
    (2) If the lethal taking of marine mammals is proposed:
    (i) Non-lethal methods for conducting the research are not 
feasible; and
    (ii) For depleted, endangered, or threatened species, the results 
will directly benefit that species or stock, or will fulfill a 
critically important research need.
    (3) Any permanent removal of a marine mammal from the wild is 
consistent with any applicable quota established by the Office 
Director.
    (4) The proposed research will not likely have significant adverse 
effects on any other component of the marine ecosystem of which the 
affected species or stock is a part.
    (5) For species or stocks designated or proposed to be designated 
as depleted, or listed or proposed to be listed as endangered or 
threatened:
    (i) The proposed research cannot be accomplished using a species or 
stock that is not designated or proposed to be designated as depleted, 
or listed or proposed to be listed as threatened or endangered;
    (ii) The proposed research, by itself or in combination with other 
activities will not likely have a long-term direct or indirect adverse 
impact on the species or stock;
    (iii) The proposed research will either:
    (A) Contribute to fulfilling a research need or objective 
identified in a species recovery or conservation plan, or if there is 
no conservation or recovery plan in place, a research need or objective 
identified by the Office Director in stock assessments established 
under section 117 of the MMPA;
    (B) Contribute significantly to understanding the basic biology or 
ecology of the species or stock, or to identifying, evaluating, or 
resolving conservation problems for the species or stock; or
    (C) Contribute significantly to fulfilling a critically important 
research need.
    (6) For proposed enhancement activities:
    (i) Only living marine mammals and marine mammal parts necessary 
for enhancement of the survival, recovery, or propagation of the 
affected species or stock may be taken, imported, exported, or 
otherwise affected under the authority of an enhancement permit. Marine 
mammal parts would include in this regard clinical specimens or other 
biological samples required for the conduct of breeding programs or the 
diagnosis or treatment of disease.
    (ii) The activity will likely contribute significantly to 
maintaining or increasing distribution or abundance, enhancing the 
health or welfare of the species or stock, or ensuring the survival or 
recovery of the affected species or stock in the wild.
    (iii) The activity is consistent with:
    (A) An approved conservation plan developed under section 115(b) of 
the MMPA or recovery plan developed under section 4(f) of the ESA for 
the species or stock; or
    (B) If there is no conservation or recovery plan, with the Office 
Director's evaluation of the actions required to enhance the survival 
or recovery of the species or stock in light of the factors that would 
be addressed in a conservation or recovery plan.
    (iv) An enhancement permit may authorize the captive maintenance of 
a marine mammal from a threatened, endangered, or depleted species or 
stock only if the Office Director determines that:
    (A) The proposed captive maintenance will likely contribute 
directly to the survival or recovery of the species or stock by 
maintaining a viable gene pool, increasing productivity, providing 
necessary biological information, or establishing animal reserves 
required to support directly these objectives; and

[[Page 21939]]

    (B) The expected benefit to the species or stock outweighs the 
expected benefits of alternatives that do not require removal of marine 
mammals from the wild.
    (v) The Office Director may authorize the public display of marine 
mammals held under the authority of an enhancement permit only if:
    (A) The public display is incidental to the authorized captive 
maintenance;
    (B) The public display will not interfere with the attainment of 
the survival or recovery objectives;
    (C) The marine mammals will be held consistent with all 
requirements and standards that are applicable to marine mammals held 
under the authority of the Acts and the Animal Welfare Act, unless the 
Office Director determines that an exception is necessary to implement 
an essential enhancement activity; and
    (D) The marine mammals will be excluded from any interactive 
program and will not be trained for performance.
    (vi) The Office Director may authorize non-intrusive scientific 
research to be conducted while a marine mammal is held under the 
authority of an enhancement permit, only if such scientific research:
    (A) Is incidental to the permitted enhancement activities; and
    (B) Will not interfere with the attainment of the survival or 
recovery objectives.
    (c) Restrictions. (1) The following restrictions apply to all 
scientific research permits issued under this subpart:
    (i) Research activities must be conducted in the manner authorized 
in the permit.
    (ii) Research results shall be published or otherwise made 
available to the scientific community in a reasonable period of time.
    (iii) Research activities must be conducted under the direct 
supervision of the principal investigator or a co-investigator 
identified in the permit.
    (iv) Personnel involved in research activities shall be reasonable 
in number and limited to:
    (A) Individuals who perform a function directly supportive of and 
necessary to the permitted research activity; and
    (B) Support personnel included for the purpose of training or as 
backup personnel for persons described in paragraph (c)(1)(iv)(A).
    (v) Any marine mammal part imported under the authority of a 
scientific research permit must not have been obtained as the result of 
a lethal taking that would be inconsistent with the Acts, unless 
authorized by the Office Director.
    (vi) Marine mammals held under a permit for scientific research 
shall not be placed on public display, included in an interactive 
program or activity, or trained for performance unless such activities:
    (A) Are necessary to address scientific research objectives and 
have been specifically authorized by the Office Director under the 
scientific research permit; and
    (B) Are conducted incidental to and do not in any way interfere 
with the permitted scientific research; and
    (C) Are conducted in a manner consistent with provisions applicable 
to public display, unless exceptions are specifically authorized by the 
Office Director.
    (vii) Any activity conducted incidental to the authorized 
scientific research activity must not involve any taking of marine 
mammals beyond what is necessary to conduct the research (i.e., 
educational and commercial photography).
    (2) Any marine mammal or progeny held in captive maintenance under 
an enhancement permit shall be returned to its natural habitat as soon 
as feasible, consistent with the terms of the enhancement permit and 
the objectives of an approved conservation or recovery plan. In 
accordance with section 10(j) of the ESA, the Office Director may 
authorize the release of any population of an endangered or threatened 
species outside the current range of such species if the Office 
Director determines that such release will further the conservation of 
such species.


Sec. 216.42   Photography. [Reserved]


Sec. 216.43   Public display. [Reserved]


Sec. 216.44   Applicability/transition.

    (a) General. The regulations of this subpart are applicable to all 
persons, including persons holding permits or other authorizing 
documents issued before June 10, 1996, by NMFS for the take, import, 
export, or conduct of any otherwise prohibited activity involving a 
marine mammal or marine mammal part for special exception purposes.
    (b) Scientific research. Any intrusive research as defined in 
Sec. 216.3, initiated after June 10, 1996, must be authorized under a 
scientific research permit. Intrusive research authorized by the Office 
Director to be conducted on captive marine mammals held for public 
display purposes prior to June 10, 1996, must be authorized under a 
scientific research permit one year after June 10, 1996.
* * * * *


Secs. 216.46-216.49   [Reserved]

PART 222--ENDANGERED FISH OR WILDLIFE

    9. The authority citation for part 222 is revised to read as 
follows:

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

    10. In Sec. 222.23, the first sentence in paragraph (b) is revised 
to read as follows:


Sec. 222.23   Permits for scientific purposes or to enhance the 
propagation or survival of the affected endangered species.

* * * * *
    (b) Application procedures. To obtain such a permit, an application 
must be made to the Director in accordance with this subpart, except 
for marine mammal permits which shall be issued in accordance with the 
provisions of part 216, subpart D of this chapter, and sea turtle 
permits which shall be issued in accordance with part 220, subpart E of 
this chapter.
* * * * *
[FR Doc. 96-11776 Filed 5-9-96; 8:45 am]
BILLING CODE 3510-22-W