(1) A statement of the purpose, date, location and manner of the taking or importation;

(2) A description of the marine mammal or the marine mammal products to be taken or imported, including the species or subspecies involved; the population stock, when known, the number of specimens or products (or the weight thereof, where appropriate); and the anticipated age, size, sex, and condition (i.e., whether pregnant or nursing) of the animals involved;

(3) If the marine mammal is to be taken and transported alive, a complete description of the manner of transportation, care and maintenance, including the type, size, and construction of the container or artificial environment; arrangements for feeding and sanitation; a statement of the applicant's qualifications and previous experience in caring for and handling captive marine mammals and a like statement as to the qualifications of any common carrier or agent to be employed to transport the animal; and a written certification of a licensed veterinarian knowledgeable in the field of marine mammals that he has personally reviewed the arrangements for transporting and maintaining the animals and that in his opinion they are adequate to provide for the well-being of the animal;

(4) If the application is for a scientific research permit, a detailed description of the scientific research project or program in which the marine mammal or marine mammal product is to be used including a copy of the research proposal relating to such program or project and the names and addresses of the sponsor or cooperating institution and the scientists involved;

(5) If the application is for a scientific research permit, and if the marine mammal proposed to be taken or imported is listed as an endangered or threatened species or has been designated by the Secretary as depleted, a detailed justification of the need for such a marine mammal, including a discussion of possible alternatives, whether or not under the control of the applicant; and

(6) If the application is for a public display permit, a detailed description

of the proposed use to which the marine mammal or marine mammal product is to be put, including the manner, location, and times of display, whether such display is for profit, an estimate of the numbers and types of persons who it is anticipated will benefit for such display, and whether and to what extent the display is connected with educational or scientific programs. There shall also be included a complete description of the enterprise seeking the display permit and its educational, and scientific qualifications, if any.

30

(b) Review by Marine Mammal Commission. Upon receipt of an application the Director shall forward the application to the Marine Mammal Commission together with a request for the recommendations of the Commission and the Committee of Scientific Advisors on Marine Mammals. In order to comply with the time limits provided in these regulations, the Director shall request that such recommendation be submitted within days of receipt of the application by the Commission. If the Commission or the Committee, as the case may be, does not respond within 30 days from the receipt of such application by the Commission, the Director shall advise the Commission in writing that failure to respond within 45 days from original receipt of the application (or such longer time as the Director may establish) shall be considered as a recommendation from the Commission and the Committee that the permit be issued. The Director may also consult with any other person, institution or agency concerning the application.

(c) Issuance criteria. Permits applied for under this section shall be issued, suspended, modified and revoked pursuant to regulations contained in § 18.33. In determining whether to issue a scientific research permit, the Director shall consider whether the proposed taking or importation will be consistent with the policies and purposes of the Act; and whether the granting of the permit is required to further a bona fide and necessary or desirable scientific purpose, taking into account the benefits anticipated to be derived from the scientific re

search contemplated and the effect of the purposed taking or importation on the population stock and the marine ecosystem. In determining whether to issue a public display permit, the Director shall consider whether the proposed taking or importation will be consistent with the policies and purposes of the Act; whether a substantial public benefit will be gained from the display contemplated, taking into account the manner of the display and the anticipated audience on the one hand, and the effect of the proposed taking or importation on the population stocks of the marine mammal in question and the marine ecosystem on the other; and the applicant's qualifications for the proper care and maintenance of the marine mammal or the marine mammal product, and the adequacy of his facilities.

(d) Additional Permit Conditions. In addition to the general conditions set forth in Part 13 of this Subchapter B, permits issued under this section shall be subject to the following conditions:

(1) Any permit issued under these regulations must be in the possession of the person to whom it is issued (or an agent of such person) during:

(i) The time of the authorized taking or importation;

(ii) The period of any transit of such person or agent which is incidental to such taking or importation; and

(iii) Any other time while any marine mammal taken or imported under such permit is in the possession of such person or agent.

(2) A duplicate copy of the issued permit must be physically attached to the container, package, enclosure, or other means of containment, in which the marine mammal is placed for purposes of storage, transit, supervision,

or care.

(e) Tenure of Permits. The tenure of permits for scientific research or public display shall be designated on the face of the permit.

§ 18.32 Waiver of the moratorium.

See Subpart F (Waiver of the moratorium; State laws and regulations) and Subpart G (Notice and Hearing on Section 103 Regulations) for procedures regarding waivers of the morato

rium in those circumstances where a state provides an acceptable management program for a species or population stock within its jurisdiction.

[40 FR 59442, Dec. 24, 1975]

§ 18.33 Procedures for issuance of permits and modification, suspension or revocation thereof.

(a) Whenever application for a permit is received by the director which the director deems sufficient, he shall, as soon as practicable, publish a notice thereof in the FEDERAL REGISTER. Such notice shall set forth a summary of the information contained in such application. Any interested party may, within 30 days after the date of publication of such notice, submit to the director his written data or views with respect to the taking or importation proposed in such application and may request a hearing in connection with the action to be taken thereon.

(b) If the request for a hearing is made within the 30-day period referred to in paragraph (a) of this section, or if the director determines that a hearing would otherwise be advisable, the director may, within 60 days after the date of publication of the notice referred to in paragraph (a) of this section, afford to such requesting party or parties an opportunity for a hearing. Such hearing shall also be open to participation by any interested members of the public. Notice of the date, time, and place of such hearing shall be published in the FEDERAL REGISTER not less than 15 days in advance of such hearing. Any interested person may appear in person or through representatives at the hearing and may submit any relevant material, data, views, comments, arguments, or exhibits. A summary record of the hearing shall be kept.

(c) As soon as practicable but not later than 30 days after the close of the hearing (or if no hearing is held, as soon as practicable after the end of the 30 days succeeding publication of the notice referred to in paragraph (a) of this section the director shall issue or deny issuance of the permit. Notice of the decision of the director shall be published in the FEDERAL REGISTER

within 10 days after the date of such issuance or denial. Such notice shall include the date of the issuance or denial and indicate where copies of the permit, if issued, may be obtained.

(d) Any permit shall be subject to modification, suspension, or revocation by the director in whole or in part in accordance with these regulations and the terms of such permits. The permittee shall be given written notice by registered mail, return receipt requested, of any proposed modification, suspension, or revocation. Such notice shall specify:

(1) The action proposed to be taken along with a summary of the reasons therefor;

(2) In accordance with 5 U.S.C. 558, the steps which the permittee may take to demonstrate or achieve compliance with all lawful requirements; and

(3) That the permittee is entitled to a hearing thereon if a written request for such a hearing is received by the Director within 10 days after receipt of the aforesaid notice or such other later date as may be specified in the notice to the permittee. The time and place of the hearing, if requested by the permittee, shall be determined by the director and a written notice thereof given to the permittee by registered mail, return receipt requested, not less than 15 days prior to the date of hearing specified. The director may, in his discretion, allow participation at the hearing by interested members of the public. The permittee and other parties participating may submit all relevant material, data, views, comments, arguments, and exhibits at the hearing. A summary record shall be kept of any such hearing.

(e) The Director shall make a decision regarding the proposed modification, suspension, or revocation, as soon as practicable after the close of the hearing, or if no hearing is held, as soon as practicable after the close of the 10 day period during which a hearing could have been requested. Notice of the modification, suspension, or revocation shall be published in the FEDERAL REGISTER within 10 days from the date of the Director's decision. In no event shall the proposed action take effect until notice of the Director's de

cision is published in the FEDERAL REG

ISTER.

Subpart E-Depleted Species of Stocks [Reserved]

Subpart F-Waiver of the Moratorium; State Laws and Regulations

SOURCE: 40 FR 59442, Dec. 24, 1975, unless otherwise noted.

§ 18.51 Purpose of regulations.

The regulations contained in this subpart fulfill the requirements of sections 101, 103, and 109 of the Act for regulations to implement a waiver of the moratorium in those circumstances where a State provides an acceptable management program for a species or population stock within its jurisdiction.

§ 18.52 Scope of regulations.

(a) The provisions in this subpart apply only when the Director has made a decision to waive the moratorium, and when a State has requested a determination from the Director, pursuant to section 109(a)(2) of the Act, that the State's laws and regulations relating to the protection and taking, within its jurisdiction, of any species or population stock of marine mammals, are consistent with the waiver of the moratorium, the Act and the regulations in this subchapter which apply to such species or population stocks. The provisions set forth standards and criteria for such determination by the Director and for subsequently waiving the moratorium.

(b) The provisions in this subpart apply to all takings of marine mammals subject to a waiver of the moratorium and approved State laws and regulations implementing the waiver and to importation subsequent to such takings except takings for scientific research, for public display, and incidental to commercial fishing operations.

§ 18.53 Effective waiver of the moratori

um.

(a) The Director shall, in response to a request by a State under § 18.54 for approval of its laws and regulations implementing a waiver of the morato

rium, make such waiver as is consistent with the goals, policies, and provisions, and pursuant to the procedures of the Act. Such waivers shall be published as notices in the FEDERAL REGISTER.

(b) Any waiver granted in response to a request by a State under this subpart shall not be effective until the Director has approved the relevant State laws and regulations pursuant to § 18.54.

(c) Upon waiver of the moratorium and approval of State laws and regulations implementing the waiver under this subpart, Subpart B of Part 18 shall not apply to any activities subject to such laws and regulations.

§ 18.54 Approval of State laws and regulations-procedures.

(a) Any state may request a determination that its laws and regulations are consistent with the Act and the regulations in this part, and may request a waiver of appropriate portions of section 101 of the Act in order to allow such laws and regulations to take effect.

(b) The request must be submitted in accordance with § 18.4(c) of this part.

(c) Upon receipt of a request in accordance with § 18.4(c) of this part, the Director shall publish in the FEDERAL REGISTER a notice of consideration of the laws and regulations submitted and a summary of the substantive ecological and biological statements required by section 103(d) of the Act. Such notice shall also set forth relevant information concerning the right afforded interested persons to request a public hearing in accordance with Subpart G.

(d) The Director may approve such State laws and regulations if they implement a waiver of the moratorium and he determines them to be consistent with any regulations promulgated under section 103 with respect to such marine mammals, provisions of the Act, any other rule or regulation promulgated pursuant to the Act with respect to such marine mammals, and the provisions of § 18.55 and other provisions of this subpart.

(e) Upon approval, the Director shall publish a notice in the FEDERAL REGISTER stating such approval, briefly summarizing the management program established by the State laws and regulations, stating which provisions of section 101 of the Act are waived in order to allow such State laws and regulations to take effect, and the date of submission of the State's annual report.

(f) Any modifications, amendments, deletions or additions to laws or regulations previously approved shall require review and approval by the Director pursuant to paragraphs (c) through (f) of § 18.56 of these regulations before their adoption.

(g) All determinations by the Director shall be final.

(h) If the Director has approved State laws and regulations pursuant to this subpart, all activities conducted pursuant to a waiver of the moratorium, including those carried out on the high seas adjacent to the coast of the State, must be in accordance with the approved State laws and regulations. Any violation of State laws and regulations occurring beyond the jurisdiction of the State shall be punishable in accordance with section 105 of the Act.

§ 18.55 Approval of State laws and regulations-criteria.

Any State which applies to the Director for approval of its laws and regulations pursuant to § 18.54 must demonstrate, to the Director's satisfaction, that such laws and regulations:

(a) Provide for a modern scientific resource management program, including, but not limited to, research, census, law enforcement, habitat acquisition and improvement and, when and where appropriate, the periodic or total protection of the marine mammals in question;

(b) Establish a program which is based upon the best scientific evidence available on the relevant marine ecosystem and the role of the marine mammals in question in that ecosystem;

(c) Establish a program which is consistent with the primary goal of the Act, to maintain the health and stability of the marine ecosystem;

(d) Establish a program which insures that the species or population stock of marine mammals in question will be maintained at its optimum sustainable population, unless the State can show that some other population level more properly maintains the health and stability of the marine ecosystem;

(e) Provide appropriate maximum quotas and seasons, whenever a taking or importation is proposed, unless the State can show that it is consistent with these criteria to have no quota or season;

(f) Require the automatic imposition of a moratorium on all taking and/or importing of the marine mammals in question whenever their number drops below the range of optimum sustainable population levels unless such diminution in the population is consistent with the health and stability of the relevant marine ecosystem.

(g) Establish quotas, seasons, and other allowances and restrictions as necessary in accordance with the following factors:

(1) The seasonal distribution of populations;

(2) Segregation within populations by sex and age;

(3) Discreteness of populations; (4) Population density;

(5) Critical periods in the species life cycle;

(6) Critical habitat areas;

(7) Productivity of the population; (8) Species interactions;

(9) Percentage of retrieval by hunters;

(10) Maximization of the utilization of the species;

(11) Other uses of the species, such as recreational use or incidental catch; and

(12) Enforceability of the limitations.

(h) Contain suitable limitations on the means and methods of taking which assure that taking will be by humane means and will maximize the utilization of each animal taken.

(i) Contain provisions for significant public participation within the State in the process of making the rules in question.

(j) Meet the criteria specified in § 18.4(d) of this part, to the extent such criteria may differ from those prescribed in this section.

§ 18.56 Review of approved State laws and regulations.

(a) All State laws and regulations which have been approved shall be reviewed annually, unless a major modification indicates that an earlier review is appropriate.

(b) In order to facilitate such a review, each State having approved laws and regulations must submit an annual report containing the following information current for each reporting period:

(1) Any changes in the State laws or regulations;

(2) Any new data on the marine mammal stocks or the marine ecosystems in question;

(3) All available harvest data;

(4) A summary of all research activity on the stocks or ecosystem in question;

(5) Any changes in the information provided with the original request for approval;

(6) A summary of all enforcement activity, including permits issued, skins sealed, reports under permits, investigations undertaken and their dispositions;

(7) Present budget and staffing level for the marine mammal activities;

(8) Any other information which the Director may request, or which the State deems necessary or advisable.

(c) Each State having approved laws and regulations shall file a special report within 30 days whenever any of the following information is available:

(1) A proposed change in a relevant State law or regulation (amendments, repealers, or new legislation or regulations); or

(2) A significant natural or manmade occurrence affecting the marine ecosystem or the stock in question; or

(3) An apparent over-harvest or other significant violation of the State management program.

(d) Upon receipt of any other report described in § 18.56(b) or § 18.56(c) the Director shall, in consultation with the Marine Mammal Commission de