[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: 50CFR216.45]



[Page 46-49]

 

                    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. 216.45  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



[[Page 47]]



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



[[Page 48]]



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



[[Page 49]]



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.



[59 FR 50376, Oct. 3, 1994]