MARINE MAMMAL COMMISSION — Annual Report for 1995 



authorization, researchers are required to submit a 

 letter of intent, at least 60 days before starting their 

 research, that sets forth (1) the qualifications of the 

 applicant, (2) the species or stocks of marine mam- 

 mals that may be harassed, (3) the geographic loca- 

 tion^) of the research, (4) the period of time during 

 which the research will be conducted, (5) the purpose 

 of the research, including an explanation of why the 

 research is believed to be bona fide, and (6) the 

 methods to be used to conduct the research. A new 

 statutory definition states that bona fide scientific 

 research is that which would (1) likely be accepted for 

 publication in a refereed scientific journal, (2) likely 

 contribute to the basic knowledge of marine mammal 

 biology or ecology, or (3) likely identify, evaluate, or 

 resolve conservation problems. Within 30 days of 

 receiving a letter of intent, the Secretary is required to 

 write to the applicant confirming that the general 

 authorization applies to the proposed research or, if 

 the Secretary believes that the research is likely to 

 result in taking other than by Level B harassment, that 

 a permit must be obtained. Research that involves the 

 capture of marine mammals or that has the potential 

 to injure marine mammals will remain subject to the 

 permitting requirements. Also, research involving 

 any harassment, Level B included, of marine mam- 

 mals listed as endangered or threatened under the 

 Endangered Species Act remains subject to the permit- 

 ting requirements of the Endangered Species Act. 



By letter of 1 December 1994 to the National 

 Marine Fisheries Service, the Commission provided 

 comments on the interim final rule implementing the 

 general authorization. In its letter, the Commission 

 identified several areas in which the regulations 

 deviate from the statutory requirements and need to be 

 clarified. In addition, the Commission recommended 

 that the Service coordinate its efforts with the Fish 

 and Wildlife Service to enable the agencies to adopt 

 consistent, if not identical, implementing regulations. 

 Despite the Commission's recommendation, the 

 Services have chosen to promulgate implementing 

 regulations independently. The National Marine 

 Fisheries Service is currently developing final regula- 

 tions regarding the general authorization. The Fish 

 and Wildlife Service has yet to propose implementing 

 regulations and is not currently drafting any. 



Authorization to conduct research under the general 

 authorization was granted by the National Marine 

 Fisheries Service to one researcher in 1994 and to 17 

 researchers in 1995. Implementation of the general 

 authorization for certain types of research has substan- 

 tially alleviated the delay experienced by some re- 

 searchers in obtaining permits. 



In response to concerns from many researchers that 

 the process for issuing scientific research permits was 

 unnecessarily restrictive in all instances, the 1994 

 amendments provided greater flexibility by allowing 

 the Secretary to issue permits before the end of the 

 otherwise required 30-day public review and comment 

 period when such delay could result in injury to a 

 species, stock, or individual animal or in the loss of 

 unique research opportunities. To date, no permits 

 have been issued under the expedited procedures. 



During the 1994 reauthorization, it was noted that 

 commercial and educational photography did not fit 

 under any of the existing permit categories and, as a 

 result, was sometimes carried out pursuant to a 

 scientific research permit. In response, the Act was 

 amended to create a new permitting authority for 

 photography for commercial and educational purposes. 

 This authority has yet to be implemented by regula- 

 tion. A proposed rule is expected early in 1996. 



Although the National Marine Fisheries Service has 

 yet to develop regulations to implement the commer- 

 cial and educational photography permit provision, it 

 received an application seeking such a permit on 20 

 September 1995. The Service is processing the 

 request as a pilot application for Level B harassment 

 for photographic purposes and sent it to the Commis- 

 sion for comment. The Commission by letter of 28 

 November 1995 recommended that, with regard to 

 future permits requested under this authorization, the 

 Service evaluate each applicant's experience and 

 familiarity with the subject marine mammals, and 

 noted that the Service should provide additional 

 support for its position with respect to endangered and 

 threatened species. The Commission also recom- 

 mended that the Service provide in its regulations 

 additional guidance as to the information regarding 

 expected publication of photographs or other products. 

 The information, the Commission noted, should be 



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