[Code of Federal Regulations]

[Title 50, Volume 7]

[Revised as of October 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 50CFR216.33]



[Page 38-41]

 

                    TITLE 50--WILDLIFE AND FISHERIES

 

  CHAPTER II--NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC AND 

           ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

 

PART 216_REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS

--Table of Contents

 

                      Subpart D_Special Exceptions

 

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



[[Page 39]]



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.



[[Page 40]]



    (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.

    (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.



[[Page 41]]



    (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.



[61 FR 21935, May 10, 1996]