---
kind: "range"
citation: "50 C.F.R. §§ 216.33–216.38"
title: "50"
from: "216.33"
to: "216.38"
count: 6
url: "https://uscodex.org/cfr/50/216.33..216.38"
---

# §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 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 [§ 216.35](/cfr/50/216.35.md) and [§ 216.36(a)](/cfr/50/216.36.md?p=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.
  - (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 [§ 216.34](/cfr/50/216.34.md);
    - (ii) All purpose-specific issuance criteria as appropriate set forth at [§ 216.41](/cfr/50/216.41.md), [§ 216.42](/cfr/50/216.42.md), and [§ 216.43](/cfr/50/216.43.md);
    - (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.
  - (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.

# §216.34. Issuance criteria.

- (a) For the Office Director to issue any permit under this subpart, the applicant must demonstrate that:
  - (1) The proposed activity is humane and does not present any unnecessary risks to the health and welfare of marine mammals;
  - (2) The proposed activity is consistent with all restrictions set forth at [§ 216.35](/cfr/50/216.35.md) and any purpose-specific restrictions as appropriate set forth at [§ 216.41](/cfr/50/216.41.md), [§ 216.42](/cfr/50/216.42.md), and [§ 216.43](/cfr/50/216.43.md);
  - (3) The proposed activity, if it involves endangered or threatened marine mammals, will be conducted consistent with the purposes and policies set forth in [section 2](/cfr/50/2.md) of the ESA;
  - (4) The proposed activity by itself or in combination with other activities, will not likely have a significant adverse impact on the species or stock;
  - (5) Whether the applicant's expertise, facilities, and resources are adequate to accomplish successfully the objectives and activities stated in the application;
  - (6) If a live animal will be held captive or transported, the applicant's qualifications, facilities, and resources are adequate for the proper care and maintenance of the marine mammal; and
  - (7) Any requested import or export will not likely result in the taking of marine mammals or marine mammal parts beyond those authorized by the permit.
- (b) The opinions or views of scientists or other persons or organizations knowledgeable of the marine mammals that are the subject of the application or of other matters germane to the application will be considered.

# §216.35. Permit restrictions.


The following restrictions shall apply to all permits issued under this subpart:

- (a) The taking, importation, export, or other permitted activity involving marine mammals and marine mammal parts shall comply with the regulations of this subpart.
- (b) Special exception permits expire on the date specified in the permit, unless limited or extended in duration by the Director in accordance with §§ [216.36](/cfr/50/216.36.md) and [216.39](/cfr/50/216.39.md).
- (c) Except as provided for in [§ 216.41(c)(1)(v)](/cfr/50/216.41.md?p=c-1-v), marine mammals or marine mammal parts imported under the authority of a permit must be taken or imported in a humane manner, and in compliance with the Acts and any applicable foreign law. Importation of marine mammals and marine mammal parts is subject to the provisions of [50 CFR part 14](/cfr/50/part14.md).
- (d) The permit holder shall not take from the wild any marine mammal which at the time of taking is either unweaned or less than eight months old, or is a part of a mother-calf/pup pair, unless such take is specifically authorized in the conditions of the special exception permit. Additionally, the permit holder shall not import any marine mammal that is pregnant or lactating at the time of taking or import, or is unweaned or less than eight months old unless such import is specifically authorized in the conditions of the special exception permit.
- (e) Captive marine mammals shall not be released into the wild unless specifically authorized by the Office Director under a scientific research or enhancement permit.
- (f) The permit holder is responsible for all activities of any individual who is operating under the authority of the permit;
- (g) Individuals conducting activities authorized under the permit must possess qualifications commensurate with their duties and responsibilities, or must be under the direct supervision of a person with such qualifications;
- (h) Persons who require state or Federal licenses to conduct activities authorized under the permit must be duly licensed when undertaking such activities;
- (i) Special exception permits are not transferable or assignable to any other person, and a permit holder may not require any direct or indirect compensation from another person in return for requesting authorization for such person to conduct the taking, import, or export activities authorized under the subject permit;
- (j) The permit holder or designated agent shall possess a copy of the permit when engaged in a permitted activity, when the marine mammal is in transit incidental to such activity, and whenever marine mammals or marine mammal parts are in the possession of the permit holder or agent. A copy of the permit shall be affixed to any container, package, enclosure, or other means of containment, in which the marine mammals or marine mammal parts are placed for purposes of transit, supervision, or care. For marine mammals held captive and marine mammal parts in storage, a copy of the permit shall be kept on file in the holding or storage facility.

# §216.36. Permit conditions.

- (a) **Specific conditions.**
  - (1) Permits issued under this subpart shall contain specific terms and conditions deemed appropriate by the Office Director, including, but not limited to:
    - (i) The number and species of marine mammals that are authorized to be taken, imported, exported, or otherwise affected;
    - (ii) The manner in which marine mammals may be taken according to type of take;
    - (iii) The location(s) in which the marine mammals may be taken, from which they may be imported, or to which they may be exported, as applicable, and, for endangered or threatened marine mammal species to be imported or exported, the port of entry or export;
    - (iv) **The period during which the permit is valid.**
  - (2) [Reserved]
- (b) **Other conditions.** In addition to the specific conditions imposed pursuant to [paragraph (a)](#a) of this section, the Office Director shall specify any other permit conditions deemed appropriate.

# §216.37. Marine mammal parts.


With respect to marine mammal parts acquired by take or import authorized under a permit issued under this subpart:

- (a) **Marine mammal parts are transferrable if—**
  - (1) The person transferring the part receives no remuneration of any kind for the marine mammal part;
  - (2) **The person receiving the marine mammal part is—**
    - (i) An employee of NMFS, the U.S. Fish and Wildlife Service, or any other governmental agency with conservation and management responsibilities, who receives the part in the course of their official duties;
    - (ii) A holder of a special exception permit which authorizes the take, import, or other activity involving the possession of a marine mammal part of the same species as the subject part; or
    - (iii) In the case of marine mammal parts from a species that is not depleted, endangered or threatened, a person who is authorized under [section 112(c)](/cfr/50/112.md?p=c) of the MMPA and [subpart C](/cfr/50/subpartC.md) of this part to take or import marine mammals or marine mammal parts;
    - (iv) Any other person specifically authorized by the Regional Director, consistent with the requirements of paragraphs [(a)(1)](#a-1) and [(a)(3) through (6)](#a-3..a-6) of this section.
  - (3) The marine mammal part is transferred for the purpose of scientific research, maintenance in a properly curated, professionally accredited scientific collection, or education, provided that, for transfers for educational purposes, the recipient is a museum, educational institution or equivalent that will ensure that the part is available to the public as part of an educational program;
  - (4) A unique number assigned by the permit holder is marked on or affixed to the marine mammal part or container;
  - (5) The person receiving the marine mammal part agrees that, as a condition of receipt, subsequent transfers may only occur subject to the provisions of [paragraph (a)](#a) of this section; and
  - (6) Within 30 days after the transfer, the person transferring the marine mammal part notifies the Regional Director of the transfer, including a description of the part, the person to whom the part was transferred, the purpose of the transfer, certification that the recipient has agreed to comply with the requirements of [paragraph (a)](#a) of this section for subsequent transfers, and, if applicable, the recipient's permit number.
- (b) Marine mammal parts may be loaned to another person for a purpose described in [paragraph (a)(3)](#a-3) of this section and without the agreement and notification required under paragraphs [(a)(5)](#a-5) and [(6)](#a-6) of this section, if:
  - (1) A record of the loan is maintained; and
  - (2) **The loan is for not more than one year.** Loans for a period greater than 12 months, including loan extensions or renewals, require notification of the Regional Director under [paragraph (a)(6)](#a-6).
- (c) Unless other disposition is specified in the permit, a holder of a special exception permit may retain marine mammal parts not destroyed or otherwise disposed of during or after a scientific research or enhancement activity, if such marine mammal parts are:
  - (1) Maintained as part of a properly curated, professionally accredited collection; or
  - (2) Made available for purposes of scientific research or enhancement at the request of the Office Director.
- (d) Marine mammal parts may be exported and subsequently reimported by a permit holder or subsequent authorized recipient, for the purpose of scientific research, maintenance in a properly curated, professionally accredited scientific collection, or education, provided that:
  - (1) The permit holder or other person receives no remuneration for the marine mammal part;
  - (2) A unique number assigned by the permit holder is marked on or affixed to the marine mammal specimen or container;
  - (3) The marine mammal part is exported or reimported in compliance with all applicable domestic and foreign laws;
  - (4) If exported or reimported for educational purposes, the recipient is a museum, educational institution, or equivalent that will ensure that the part is available to the public as part of an educational program; and
  - (5) Special reports are submitted within 30 days after both export and reimport as required by the Office Director under [§ 216.38](/cfr/50/216.38.md).

# §216.38. Reporting.


All permit holders must submit annual, final, and special reports in accordance with the requirements established in the permit, and any reporting format established by the Office Director.