General Authorization for Scientific Research; Final Rule DEPARTMENT OF COMMERCE

SUMMARY: This interim final rule implements recent amendments to the

Marine Mammal Protection Act of 1972 (MMPA) by amending the regulations

implementing the MMPA to authorize, pursuant to a General Authorization

for Scientific Research, the harassment of marine mammals in the wild

for purposes of bona fide scientific research, that does not have the

potential to injure marine mammals (Level B harassment).

DATES: The interim rule is effective on October 3, 1994. Comments must

be postmarked or received by November 17, 1994.

ADDRESSES: Comments or requests for the Environmental Assessment (EA)

prepared for this action should be sent to Chief, Permits Division, F/

PR1, Office of Protected Resources, NMFS, 1335 East-West Highway,

Silver Spring, MD 20910-3226. Comments regarding the burden-hour

estimate or any other aspect of the collection-of-information

requirement contained in this rule should be sent to Ann D. Terbush at

the above address and to the Office of Management and Budget (OMB),

Attention: NOAA Desk Officer, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Ann D. Terbush, (301) 713-2289.

SUPPLEMENTARY INFORMATION:

General Background and Statutory Information

Marine Mammal Protection Act

The MMPA (16 U.S.C. 1361 et seq.) places a moratorium on the taking

and importing of marine mammals by persons subject to U.S. jurisdiction

with limited exceptions. One exception is for the taking or importing

of marine mammals for purposes of scientific research. The MMPA

Amendments of 1994 (1994 Amendments), enacted on April 30, 1994 (P.L.

103-238), among other things, require that, within 120 days of

enactment, NMFS issue a General Authorization for Scientific Research

and implementing regulations allowing takings of marine mammals in the

wild for purposes of bona fide scientific research by no more than

Level B harassment (pursuit, torment, or annoyance of marine mammals

that does not have the potential to injure marine mammals).

The 120-day deadline requires that this General Authorization be

issued by interim final rule without prior notice and opportunity for

prior public comment. Comments on the General Authorization and

implementing regulations are invited and will be considered in issuing

a final rule.

Level B harassment is defined as any act of pursuit, torment, or

annoyance which has the potential to disturb a marine mammal or marine

mammal stock in the wild by causing disruption of behavioral patterns,

including, but not limited to, migration, breathing, nursing, breeding,

feeding, or sheltering but does not have the potential to injure a

marine mammal or marine mammal stock in the wild. Level A harassment is

defined as any act which has the potential to injure a marine mammal or

marine mammal stock in the wild. In general, except for small take

authorizations for harassment under section 101(a)(5)(D) of the MMPA, a

permit is required to take by Level A harassment. And, a permit is also

required to hunt, capture, or kill marine mammals for the purposes of

scientific research, public display, or enhancing the survival or

recovery of a species or stock, or to take by Level B harassment for

photography for educational or commercial purposes.

Fur Seal Act

In proposed revised permit regulations published on October 14,

1993 (58 FR 53320), NMFS proposed consolidating three sets of permit

regulations that have been implemented under the MMPA, the Fur Seal Act

of 1966 (FSA) (16 U.S.C. 1151 et seq.), and the Endangered Species Act

of 1973 (ESA) (16 U.S.C. 1531 et seq.). This interim final rule revises

the permit sections of the implementing regulations of the FSA (50 CFR

part 215) to reference MMPA permit regulations (50 CFR part 216,

subpart D) as the applicable regulations for the taking of North

Pacific fur seals for scientific research or exhibition purposes. The

FSA permit regulations are also revised to allow the taking of North

Pacific fur seals involving only Level B harassment for the purpose of

scientific research under this interim final rule. (Note: North Pacific

fur seals (Pribilof Island population) have been designated as depleted

under the MMPA.)

Collection of Certain Marine Mammal Parts

In enacting the 1994 Amendments it was the apparent intent of

Congress to allow under a General Authorization the conduct of

scientific research activities involving certain low-impact types of

taking of marine mammals in the wild, with the goal of making a permit

unnecessary for scientific research involving types of taking that do

not have the potential to injure marine mammals or marine mammal

stocks. NMFS believes that such types of low-impact taking include the

collection of tissues, fluids, or other marine mammal parts sloughed,

excreted, or otherwise discharged naturally by marine mammals in the

wild, where such collection may not necessarily involve the harassment

of living marine mammals in the wild. Accordingly, NMFS is amending

Sec. 216.26 of the implementing regulations (50 CFR part 216) to allow

for purposes of bona fide scientific research, without issuance of a

permit, the collection of any tissues, fluids or other marine mammal

parts naturally sloughed, excreted or otherwise discharged by a living

marine mammal in the wild. Section 216.26 is also amended to: (1)

Ensure that requirements for the registration, identification,

transfer, or other possession of such marine mammal parts are

consistent with those already established for parts salvaged from

beached or stranded marine mammals (Sec. 216.22(c)); (2) require that,

in registering such marine mammal parts, the person collecting the part

must also state the scientific research purpose for which the part was

collected; and (3) prohibit the sale or trade of any such marine mammal

part for commercial purposes.

Discussion of General Authorization and Implementing Regulations

The implementing regulations for the General Authorization are

organized into five parts: (1) The General Authorization and the types

of activities covered; (2) letter of intent requirements; (3)

procedures for confirming that the General Authorization applies or

notifying the applicant that a permit is required; (4) the terms and

conditions applicable to activities conducted under the General

Authorization, including reporting requirements; and (5) the

circumstances under which NMFS may suspend, revoke, or modify the

authority to conduct scientific research under the General

Authorization.

Scope

Activities Included Under the General Authorization

Research activities that are likely to involve only Level B

harassment of marine mammals, and therefore that may be conducted under

the General Authorization consistent with the requirements of these

regulations, include: Photo-identification studies; behavioral

observations; vessel surveys; and aerial surveys over water or land,

and over pinniped rookeries if flown at altitudes greater than 1,000 ft

(305 meters (m)). These activities are listed in Sec. 216.45(a)(3).

This list may be expanded as new information becomes available and NMFS

determines that other types of research activities are likely to

involve only Level B harassment. Comment is requested regarding what

other types of research activities are likely to involve only Level B

harassment (i.e., no potential to injure) and can be clearly and

uniquely categorized as such in the final rule.

The General Authorization also applies to persons issued a

scientific research permit under the ESA that authorizes the taking by

Level B harassment of marine mammals listed as threatened or

endangered. An ESA permit holder authorized to conduct Level B

harassment is not required to submit a separate letter of intent. Such

Level B activities are included under the MMPA General Authorization

for Scientific Research and no letter of confirmation is needed.

Activities Not Included Under the General Authorization

As stated in section 2(b) of the 1994 Amendments, ``Except as

otherwise expressly provided, nothing in this Act is intended to amend,

repeal, or otherwise affect any other provision of law.'' Thus, marine

mammals listed as endangered or threatened under the ESA may be taken

for purposes of scientific research only after issuance of a permit for

such activities pursuant to the ESA (50 CFR part 222). And, except for

Level B harassment, other types of taking of marine mammals listed as

threatened or endangered that are authorized under an ESA permit for

scientific research are not authorized under the General Authorization.

Research activities involving the harassment of marine mammals in

the wild that have the potential to injure a marine mammal (Level A

harassment) are not covered by the General Authorization. They may be

conducted only pursuant to a scientific research permit. Likewise,

activities that involve the hunting, capturing, or killing of marine

mammals for the purposes of scientific research, public display, or

enhancing the survival or recovery of a species or stock, or taking by

Level B harassment for photography for educational or commercial

purposes, are not covered by the General Authorization and require a

permit.

Although most population surveys are likely to involve only Level B

harassment or no harassment at all, pinniped rookeries are an area of

concern because many pinniped species stampede into the water when

startled or otherwise threatened by a potential predator or by human

activity. When a stampede occurs in a haulout area (in the non-

reproductive season), it generally does not involve a potential injury,

but in a rookery situation, a stampede has the potential to injure

pups. The 1,000 ft (305 m) threshold for aerial surveys over pinniped

rookeries serves as an objective standard that may be used to determine

whether such research may be conducted under the General Authorization

or may involve potential injury to marine mammals (i.e., Level A

harassment) and, therefore, require a permit. In this regard, NMFS is

interested in comments on whether different species-specific aerial

survey altitudes or methods associated with minimal disturbance have

been established definitively in the scientific literature.

In the interest of simplicity and predictability, the interim final

rule limits research activities that may be conducted under the General

Authorization to only those types listed in Sec. 216.45(a)(3). In

preparing this interim final rule, however, NMFS considered including

provisions that would have allowed research activities other than those

types listed in Sec. 216.45(a)(3) to be included under the General

Authorization; Provided, That in the letter of intent the applicant

described the activity and furnished supporting documentation

sufficient for NMFS to determine that the activity likely would involve

only Level B harassment. For example, although bleach marking of

pinnipeds in the wild is a type of research that could injure marine

mammals (Level A harassment), if the activity is being conducted by an

experienced researcher using only non-toxic bleaching agents and proven

direct application methods on a species for which there is an

established record of tolerance of such methods without any disturbance

with potential to injure (e.g., Northern elephant seals, Mirounga

angustirostris), NMFS, upon receipt of a letter of intent containing

sufficient documentation, could determine such activity likely would

involve only Level B harassment and that the activity could be

conducted under the General Authorization. NMFS is requesting comment

on whether the final rule should include such flexibility; i.e., allow

persons to conduct, under the General Authorization, a research

activity that has not been listed in the regulations as a type of

research likely to involve only Level B harassment, if sufficient

documentation is submitted to NMFS to make a determination that the

activity is bona fide scientific research and does not involve the

potential to injure marine mammals or marine mammal stocks.

Applicants

An applicant submitting a letter of intent to conduct scientific

research under the General Authorization must be the principal

investigator, or the appropriate institution, government entity, or

corporation responsible for the supervision of the principal

investigator. If the research involves co-investigators, a single

principal investigator, who will be primarily responsible for the

research to be conducted under the General Authorization, must submit

the letter of intent, with all co-investigators identified as such.

Identification of both principal and co-investigators ensures

accountability for activities conducted under the General

Authorization.

All persons conducting an activity under the authority of the

General Authorization must possess qualifications (e.g., education or

experience) commensurate with their duties and responsibilities, or

must be under the direct supervision of a person with such

qualifications. Applicants must enclose with the letter of intent,

curricula vitae for themselves and any co-investigators that may

conduct research activities under the General Authorization. NMFS will

consider this information in determining whether the research as

described in the letter of intent can be expected to be conducted in a

manner involving no more than Level B harassment of marine mammals or

marine mammal stocks.

Letter of Intent

Persons intending to conduct a scientific research activity of the

type listed in Sec. 216.45 (a)(3) under the General Authorization must

submit, at least 60 days before commencement of such research, a letter

of intent by certified return/receipt mail to the Chief, Permits

Division, F/PR1, Office of Protected Resources, NMFS, 1335 East-West

Highway, Silver Spring, MD 20910-3226. Persons issued an ESA scientific

research permit authorizing the take of marine mammals in the wild by

Level B harassment, however, need not submit a letter of intent. Those

Level B activities are covered by the General Authorization, and no

letter of confirmation is needed.

All letters of intent must include the name, address, telephone

number, qualifications, and experience of the applicant (i.e.,

principal investigator) and any co-investigator(s). Curricula vitae

must be provided for each, including a list of publications by such

investigator relevant to the objectives, methodology, or other aspects

of the proposed research. Each letter of intent must be signed, dated,

and include the certification statement specified at Sec. 216.45(b)(3).

Each letter of intent must include brief statements responsive to

the information requirements of section 104(c)(3)(C) of the MMPA: The

species or stocks of marine mammals (common and scientific names) that

are the subject of the scientific research and any other species or

stock of marine mammals that may be harassed during the conduct of the

research; the geographic location(s) in which the research is to be

conducted, e.g., geographic name or lat./long.; the period(s) of time

over which the research will be conducted (up to 5 years), including

the field season(s) for the research, if applicable; the purpose of the

research, including a description of how the proposed research

qualifies as bona fide research; and the methods to be used to conduct

the research.

Confirmation Letter or Notification of Permit Requirement

No later than 30 days after receipt of a letter of intent, NMFS

will issue a letter to the applicant either: Confirming that the

General Authorization applies, notifying the applicant that all or part

of the proposed research does not qualify for the General Authorization

and that a scientific research permit is required, or notifying the

applicant that the letter of intent was insufficient to determine

whether the General Authorization applies and identifying the

deficiencies to enable the applicant to revise and resubmit the letter.

The Marine Mammal Commission (MMC) and Committee of Scientific

Advisors were established under Title II of the MMPA to, among other

things, review applications for permits for the taking or import of

marine mammals and provide comment and recommendations to NMFS.

Although the 1994 Amendments do not provide for the involvement of

either the MMC or the Committee of Scientific Advisors in the General

Authorization for Scientific Research, a copy of each letter of intent

and NMFS' response will be forwarded to the MMC. This will allow the

MMC to review all research activities involving marine mammals,

including research conducted under the General Authorization.

Any suspension, revocation, or modification of the authorization

under the General Authorization will be conducted in accordance with 15

CFR part 904.

Terms and Conditions

Monitoring and Coordination

In order to ensure that research activities conducted under the

General Authorization do not either individually or cumulatively result

in takes other than by Level B harassment, NMFS plans to coordinate and

monitor research activities. Monitoring will be accomplished, in part,

through NMFS and MMC review of required annual reports. Coordination of

research activities will be accomplished, in part, by requiring persons

conducting research under the General Authorization to notify the

appropriate NMFS Regional Office(s) at least 2 weeks before initiation

of on-site activities. The Regional Office(s) will review these

notifications and coordinate upcoming research to minimize adverse

impacts on marine mammals in the wild. Where appropriate, Regional

Offices may convene meetings to coordinate research under the General

Authorization. In the event of any circumstance where research

activities result in a taking which exceeds Level B harassment, for

example, in the case of potential or actual injury to or death of a

marine mammal or marine mammal stocks in the wild, research activities

must be immediately discontinued and the principal investigator must

notify NMFS. NMFS will determine whether: The research activity in

question may continue under the General Authorization; revision of the

research methodology is necessary to remove any potential to injure

marine mammals or marine mammal stocks; or, a permit is necessary to

continue the research. The reporting of such incidents is a condition

of conducting research under the General Authorization. Similarly, in

certain instances (e.g., reports of abuse of the General

Authorization), it may be necessary for a NMFS observer to monitor

research activities directly. Therefore, a condition of conducting

research under the General Authorization is that, upon notification,

the principal investigator must allow a NMFS observer to observe

research activities.

Reporting Requirements

Persons conducting research under the General Authorization must

submit annual reports of activity. This information will be used to

monitor the effects of the activities on individual animals and their

populations, to assess possible cumulative impacts, and to determine

whether the activity is being conducted as described in the letter of

intent. Annual reports will also be used to track the progress of the

research, to determine whether the research continues to meet the bona

fide requirement, and to allow for coordination with similar research

in the same area.

Photography (e.g., still photography, videotaping, and motion

picture filming) often will be one of the methodologies employed by

researchers engaged in scientific research under the General

Authorization. Such photography does not require a photography permit

issued under the MMPA provided the primary use of the resulting images

will be for the conduct of the research or presenting or publishing the

results. In such case, such images may be incidentally used for other

scientific, educational, or commercial purposes provided the names of

all photographers are disclosed in the annual report and any

photographs, videotape, or film obtained during the conduct of research

under the General Authorization are identified by a statement that

refers to the General Authorization and includes the file number

provided by NMFS in the confirmation letter, the name of the

photographer, and the date the image was taken. This statement must

accompany the image(s) in all subsequent uses or sales. The annual

report must note incidental scientific, educational, or commercial uses

of the images. However, if the primary use of the images will be for

educational or commercial use, a separate photography permit must first

be obtained.

Classification

NMFS prepared an EA for this action and concluded that this interim

final rule will not significantly affect the human environment. As a

result, preparation of an Environmental Impact Statement on this action

is not required by section 102(2) of the National Environmental Policy

Act or its implementing regulations. Copies of the EA are available on

request (see ADDRESSES).

This interim final rule has been determined to be not significant

for purposes of E.O. 12866.

Pursuant to section 553(b)(3)(B) of the Administrative Procedure

Act (APA), the Assistant Administrator for Fisheries, NOAA, (AA) finds

there is a good cause to waive prior notice and opportunity to comment

on this rule. It is contrary to public interest to provide prior notice

and opportunity for comment because of the deadline for implementation

mandated by the 1994 Amendments.

Pursuant to section 553(d) of the APA, the AA finds there is good

cause to waive the required 30-day delay in the effective date. Any

delay in this action would deny timely coverage by the General

Authorization to qualified persons. This General Authorization grants

an exception from the MMPA requirement to obtain a scientific research

permit for the taking of marine mammals.

This interim final rule involves an existing collection-of-

information requirement subject to the Paperwork Reduction Act that has

been approved by OMB (control number 0648-0084). The burden for

collection of that information was estimated to average 43 hours per

response, including the time to complete permit applications, complete

reporting requirements, and request subsequent modifications or

authorizations. The public reporting burden for the collection-of-

information associated with the General Authorization established under

the current rule is estimated to average 17 hours per response. Send

any comments regarding these burden estimates or any other aspect of

these requirements, including suggestions for reducing the burden to

NMFS and OMB (see ADDRESSES).

List of Subjects

50 CFR Part 215

Administrative practice and procedure, Marine mammals, Penalties,

Pribilof Islands, Reporting and recordkeeping requirements.

50 CFR Part 216

Administrative practice and procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and recordkeeping requirements,

Transportation.

Dated: September 27, 1994.

Gary Matlock,

Program Management Officer, National Marine Fisheries Service.

For reasons set out in the preamble, 50 CFR parts 215 and 216 are

amended as follows:

PART 215--PRIBILOF ISLANDS

1. The authority citation for part 215 is revised to read as

follows:

Authority: 16 U.S.C. 1151-1175, and 1361 et seq.

2. Section 215.1 is revised to read as follows:

Sec. 215.1 Purpose and scope.

The purpose of these regulations is to implement the provisions of

the Fur Seal Act of 1966, as amended. These regulations apply to the

administration of the Pribilof Islands; the take of fur seals; and

permits for the take, transportation, importation, exportation, or

possession of fur seals or their parts for educational, scientific, or

exhibition purposes.

3. Subpart B is revised to read as follows:

Subpart B--Permits for Scientific Research and Public Display

Sec. 215.11 Permits for scientific research and public display

purposes.

In accordance with the provisions of part 216, subpart D, of this

chapter, the Director, Office of Protected Resources, NMFS, may issue

permits for the taking, transportation, importation, exportation, or

possession of fur seals or their parts for scientific research or

public display purposes, and may authorize Level B harassment (defined

at Sec. 216.3) of fur seals for scientific research purposes under the

General Authorization for Scientific Research set forth at Sec. 216.45.

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

MAMMALS

4. The authority citation for part 216 continues to read as

follows:

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

5. In Sec. 216.3, the definition of ``Act'' is revised, and new

definitions ``Bona fide scientific research,'' ``ESA,'' ``FSA,''

``Level A harassment,'' ``Level B harassment,'' and ``MMPA'' are added,

in alphabetical order, to read as follows:

Sec. 216.3 Definitions.

* * * * *

Acts means, collectively, the Marine Mammal Protection Act of 1972,

as amended, 16 U.S.C. 1361 et seq., the Endangered Species Act of 1973,

as amended, 16 U.S.C. 1531 et seq., and the Fur Seal Act of 1966, as

amended, 16 U.S.C. 1151 et seq.

* * * * *

Bona fide scientific research: (1) Means scientific research on

marine mammals conducted by qualified personnel, the results of which:

(i) Likely would be accepted for publication in a refereed

scientific journal;

(ii) Are likely to contribute to the basic knowledge of marine

mammal biology or ecology. (Note: This includes, for example, marine

mammal parts in a properly curated, professionally accredited

scientific collection); or

(iii) Are likely to identify, evaluate, or resolve conservation

problems.

(2) Research that is not on marine mammals, but that may

incidentally take marine mammals, is not included in this definition

(see sections 101(a)(3)(A), 101(a)(5)(A), and 101(a)(5)(D) of the MMPA,

and sections 7(b)(4) and 10(a)(1)(B) of the ESA).

* * * * *

ESA means the Endangered Species Act of 1973, as amended, 16 U.S.C.

1531 et seq.

* * * * *

FSA means the Fur Seal Act of 1966, as amended, 16 U.S.C. 1151 et

seq.

* * * * *

Level A Harassment means any act of pursuit, torment, or annoyance

which has the potential to injure a marine mammal or marine mammal

stock in the wild.

Level B Harassment means any act of pursuit, torment, or annoyance

which has the potential to disturb a marine mammal or marine mammal

stock in the wild by causing disruption of behavioral patterns,

including, but not limited to, migration, breathing, nursing, breeding,

feeding, or sheltering but which does not have the potential to injure

a marine mammal or marine mammal stock in the wild.

* * * * *

MMPA means the Marine Mammal Protection Act of 1972, as amended, 16

U.S.C. 1361 et seq.

* * * * *

6. In part 216, all references to ``the Act'' are revised to read

``MMPA'' in the following places only.

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

Part/Sec. Paragraph Frequency

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

216.............................. Table of Contents entry

for Sec. 216.14.

216.2............................ .......................... 1

216.3............................ Introductory text......... 1

216.6............................ (a)....................... 1

(b)....................... 1

(d)....................... 1

(e)....................... 3

216.7............................ (a)....................... 1

(b)....................... 1

216.8............................ .......................... 5

216.12........................... (b)(1)(i)................. 1

216.13........................... (b)....................... 1

(c)....................... 1

216.14........................... Heading................... 1

(a) Introductory text..... 2

(b)(1).................... 1

216.15........................... Introductory text......... 1

216.21........................... .......................... 2

216.23........................... (d)....................... 2

216.24........................... (b)(2)(vii)............... 2

(b)(2)(viii).............. 1

(b)(4).................... 1

(c)(8).................... 1

(d)(2)(i)(D).............. 3

(d)(2)(vi)................ 2

(e)(7) introductory text.. 1

(e)(7)(ii)................ 1

(g)....................... 1

216.25........................... (a) introductory text..... 1

216.31........................... (a)(10)................... 1

(c)....................... 2

216.70........................... (a) introductory text..... 1

(a)(3).................... 1

216.72........................... .......................... 2

216.73........................... (b)(4).................... 1

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

7. In subpart B, Sec. 216.16 is added to read as follows:

Sec. 216.16 Prohibitions under the General Authorization for Level B

harassment for scientific research.

It shall be unlawful for any person to:

(a) Provide false information in a letter of intent submitted

pursuant to Sec. 216.45(b);

(b) Violate any term or condition imposed pursuant to

Sec. 216.45(d).

8. In subpart C, paragraphs (b), (c), and (d) of Sec. 216.26 are

revised to read as follows:

Sec. 216.26 Collection of certain marine mammal parts.

* * * * *

(b) Any tissues, fluids or other marine mammal parts sloughed,

excreted, or otherwise discharged naturally by a living marine mammal

in the wild may be collected for purposes of bona fide scientific

research, Provided, That such parts are not substances of significant

commercial value, such as ambergris, and any such collection does not

otherwise involve the taking of a living marine mammal in the wild

except as authorized under other provisions of this part.

(c) Any marine mammal part collected under paragraphs (a) and (b)

of this section must be registered and identified, and may be

transferred or otherwise possessed, in accordance with Sec. 216.22(c).

In registering a marine mammal part collected under paragraph (b) of

this section, the person who collected the part must also state the

scientific research purpose for which the part was collected.

(d) No sale or commercial trade. No person may sell or trade for

commercial purposes any marine mammal part collected under this

section.

Sec. 216.40 [Redesignated as Sec. 216.50]

9. Section 216.40 is redesignated as Sec. 216.50 of subpart E.

10. In subpart D, Sec. 216.45 is added to read as follows:

Sec. 216.45 General Authorization for Level B harassment for

scientific research.

(a) General Authorization. (1) Persons are authorized under section

104(c)(3)(C) of the MMPA to take marine mammals in the wild by Level B

harassment, as defined in Sec. 216.3, for purposes of bona fide

scientific research Provided, That:

(i) They submit a letter of intent in accordance with the

requirements of paragraph (b) of this section, receive confirmation

that the General Authorization applies in accordance with paragraph (c)

of this section, and comply with the terms and conditions of paragraph

(d) of this section; or

(ii) If such marine mammals are listed as endangered or threatened

under the ESA, they have been issued a permit under Section 10(a)(1)(A)

of the ESA and implementing regulations at 50 CFR parts 217-227,

particularly at Sec. 222.23 through Sec. 222.28, to take marine mammals

in the wild for the purpose of scientific research, the taking

authorized under the permit involves such Level B harassment of marine

mammals or marine mammal stocks, and they comply with the terms and

conditions of that permit.

(2) Except as provided under paragraph (a)(1)(ii) of this section,

no taking, including harassment, of marine mammals listed as threatened

or endangered under the ESA is authorized under the General

Authorization. Marine mammals listed as endangered or threatened under

the ESA may be taken for purposes of scientific research only after

issuance of a permit for such activities pursuant to the ESA.

(3) The following types of research activities will likely qualify

for inclusion under the General Authorization: Photo-identification

studies, behavioral observations, and vessel and aerial population

surveys (except aerial surveys over pinniped rookeries at altitudes of

less than 1,000 ft).

(b) Letter of intent. Except as provided under paragraph (a)(1)(ii)

of this section, any person intending to take marine mammals in the

wild by Level B harassment for purposes of bona fide scientific

research under the General Authorization must submit, at least 60 days

before commencement of such research, a letter of intent by certified

return/receipt mail to the Chief, Permits Division, F/PR1, Office of

Protected Resources, NMFS, 1335 East-West Highway, Silver Spring, MD

20910-3226.

(1) The letter of intent must be submitted by the principal

investigator (who shall be deemed the applicant). For purposes of this

section, the principal investigator is the individual who is

responsible for the overall research project, or the institution,

governmental entity, or corporation responsible for supervision of the

principal investigator.

(2) The letter of intent must include the following information:

(i) The name, address, telephone number, qualifications and

experience of the applicant and any co-investigator(s) to be conducting

the proposed research, and a curriculum vitae for each, including a

list of publications by each such investigator relevant to the

objectives, methodology, or other aspects of the proposed research;

(ii) The species or stocks of marine mammals (common and scientific

names) that are the subject of the scientific research and any other

species or stock of marine mammals that may be harassed during the

conduct of the research;

(iii) The geographic location(s) in which the research is to be

conducted, e.g., geographic name or lat./long.;

(iv) The period(s) of time over which the research will be

conducted (up to five years), including the field season(s) for the

research, if applicable;

(v) The purpose of the research, including a description of how the

proposed research qualifies as bona fide research as defined in

Sec. 216.3; and

(vi) The methods to be used to conduct the research.

(3) The letter of intent must be signed, dated, and certified by

the applicant as follows:

In accordance with section 104(c)(3)(C) of the Marine Mammal

Protection Act of 1972, as amended (16 U.S.C. 1361 et seq.) and

implementing regulations (50 CFR part 216), I hereby notify the

National Marine Fisheries Service of my intent to conduct research

involving only Level B harassment on marine mammals in the wild, and

request confirmation that the General Authorization for Level B

Harassment for Scientific Research applies to the proposed research

as described herein. I certify that the information in this letter

of intent is complete, true, and correct to the best of my knowledge

and belief, and I understand that any false statement may subject me

to the criminal penalties of 18 U.S.C. 1001, or penalties under the

MMPA and implementing regulations. I acknowledge and accept that

authority to conduct scientific research on marine mammals in the

wild under the General Authorization is a limited conditional

authority restricted to Level B harassment only, and that any other

take of marine mammals, including the conduct of any activity that

has the potential to injure marine mammals (i.e., Level A

harassment), may subject me to penalties under the MMPA and

implementing regulations.

(c) Confirmation that the General Authorization applies or

notification of permit requirement.

(1) Not later than 30 days after receipt of a letter of intent as

described in paragraph (b) of this section, the Chief, Permits

Division, NMFS will issue a letter to the applicant either:

(i) Confirming that the General Authorization applies to the

proposed scientific research as described in the letter of intent;

(ii) Notifying the applicant that all or part of the research

described in the letter of intent is likely to result in a taking of a

marine mammal in the wild involving other than Level B harassment and,

as a result, cannot be conducted under the General Authorization, and

that a scientific research permit is required to conduct all or part of

the subject research; or

(iii) Notifying the applicant that the letter of intent fails to

provide sufficient information and providing a description of the

deficiencies, or notifying the applicant that the proposed research as

described in the letter of intent is not bona fide research as defined

in Sec. 216.3.

(2) A copy of each letter of intent and letter confirming that the

General Authorization applies or notifying the applicant that it does

not apply will be forwarded to the Marine Mammal Commission.

(3) Periodically, NMFS will publish a summary document in the

Federal Register notifying the public of letters of confirmation

issued.

(d) Terms and conditions. Persons issued letters of confirmation in

accordance with paragraph (c) of this section are responsible for

complying with the following terms and conditions:

(1) Activities are limited to those conducted for the purposes, by

the means, in the locations, and during the periods of time described

in the letter of intent and acknowledged as authorized under the

General Authorization in the confirmation letter sent pursuant to

paragraph (c) of this section;

(2) Annual reports of activities conducted under the General

Authorization must be submitted to the Chief, Permits Division (address

listed in paragraph (b) of this section) within 90 days of completion

of the last field season(s) during the calendar year or, if the

research is not conducted during a defined field season, no later than

90 days after the anniversary date of the letter of confirmation issued

under paragraph (c) of this section. Annual reports must include:

(i) A summary of research activities conducted;

(ii) Identification of the species and number of each species taken

by Level B harassment;

(iii) An evaluation of the progress made in meeting the objectives

of the research as described in the letter of intent; and

(iv) Any incidental scientific, educational, or commercial uses of

photographs, videotape, and film obtained as a result of or incidental

to the research and if so, names of all photographers.

(3) Authorization to conduct research under the General

Authorization is for the period(s) of time identified in the letter of

intent or for a period of 5 years from the date of the letter of

confirmation issued under paragraph (c) of this section, whichever is

less, unless extended by the Director or modified, suspended, or

revoked in accordance with paragraph (e) of this section;

(4) Activities conducted under the General Authorization may only

be conducted under the on-site supervision of the principal

investigator or co-investigator(s) named in the letter of intent. All

personnel involved in the conduct of activities under the General

Authorization must perform a function directly supportive of and

necessary for the research being conducted, or be one of a reasonable

number of support personnel included for the purpose of training or as

back-up personnel;

(5) The principal investigator must notify the appropriate Regional

Director, NMFS, (Regional Director) in writing at least 2 weeks before

initiation of on-site activities. The Regional Director shall consider

this information in efforts to coordinate field research activities to

minimize adverse impacts on marine mammals in the wild. The principal

investigator must cooperate with coordination efforts by the Regional

Director in this regard;

(6) If research activities result in a taking which exceeds Level B

harassment, the applicant shall:

(i) Report the taking within 12 hours to the Director, Office of

Protected Resources, or his designee as set forth in the letter

authorizing research; and

(ii) Temporarily discontinue for 72 hours all field research

activities that resulted in the taking. During this time period, the

applicant shall consult with NMFS as to the circumstances surrounding

the taking and any precautions necessary to prevent future taking, and

may agree to amend the research protocol, as deemed necessary by NMFS.

(7) NMFS may review scientific research conducted pursuant to the

General Authorization. If requested by NMFS, the applicant must

cooperate with any such review and shall:

(i) Allow any employee of NOAA or any other person designated by

the Director, Office of Protected Resources to observe research

activities; and

(ii) Provide any documents or other information relating to the

scientific research;

(8) Any photographs, videotape, or film obtained during the conduct

of research under the General Authorization must be identified by a

statement that refers to the General Authorization or ESA permit

number, and includes the file number provided by NMFS in the

confirmation letter, the name of the photographer, and the date the

image was taken. This statement must accompany the image(s) in all

subsequent uses or sales. The annual report must note incidental

scientific, educational, or commercial uses of the images, and if there

are any such uses, the names of all photographers; and

(9) Persons conducting scientific research under authority of the

General Authorization may not transfer or assign any authority granted

thereunder to any other person.

(e) Suspension, revocation, or modification. (1) NMFS may suspend,

revoke, or modify the authority to conduct scientific research under

the General Authorization if:

(i) The letter of intent included false information or statements

of a material nature;

(ii) The research does not constitute bona fide scientific

research;

(iii) Research activities result in takings of marine mammals other

than by Level B harassment;

(iv) Research activities differ from those described in the letter

of intent submitted by the applicant and letter of confirmation issued

by NMFS; or

(v) The applicant violates any term or condition set forth in this

section.

(2) Any suspension, revocation, or modification is subject to the

requirements of 15 CFR part 904.

[FR Doc. 94-24356 Filed 9-28-94; 2:05 pm]

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