[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Notices]
[Pages 20042-20044]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09611]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
RIN 0648-XF100
National Process for Permit Applications To Retain Releasable
Rehabilitated Marine Mammals for Public Display
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; response to comments.
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SUMMARY: The National Marine Fisheries Service (NMFS) announces the
availability of its final Procedural Directive clarifying the process
for eligible permit applicants to obtain releasable marine mammals for
public display purposes under the Marine Mammal Protection Act (MMPA).
NMFS will no longer grant permits for the specific purpose of retaining
releasable marine mammals for public display. Instead, applicants will
now need to apply for a permit to take (collect) animals from the wild
pursuant to the MMPA.
DATES: This final Procedural Directive will be applicable as of May 7,
2018.
ADDRESSES: The Procedural Directive is available in electronic form via
the internet at https://www.fisheries.noaa.gov/national/laws-and-policies/protected-resources-policy-directives.
FOR FURTHER INFORMATION CONTACT: Jaclyn Taylor, NMFS, Office of
Protected Resources, (301) 427-8402, [email protected].
SUPPLEMENTARY INFORMATION: NMFS developed a national Procedural
Directive clarifying the process for eligible permit applicants to
obtain releasable marine mammals for public display purposes under the
MMPA.
NMFS will no longer accept applications for MMPA section 104
permits that specifically seek to obtain releasable rehabilitated
marine mammals for public display purposes. NMFS will instead require
prospective
[[Page 20043]]
applicants to apply for a permit authorizing actual take (collect) from
the wild. In the event NMFS grants a permit for take from the wild, the
NMFS OPR Director may then, at his or her discretion, require that a
releasable rehabilitated marine mammal be substituted for the
authorized capture from the wild, in accordance with 50 CFR 216.27.
On November 15, 2017, NMFS published the draft national Procedure
for Permit Applications to Retain Releasable Rehabilitated Marine
Mammals for Public Display for a 30-day public comment period (82 FR
52880). Comments received are available on regulations.gov at https://www.regulations.gov/docket?D=NOAA-NMFS-2017-0096. Substantive and
relevant comments and NMFS' responses are included below.
General Comments
Comment 1: Several commenters expressed support for the draft
Procedural Directive, stating that it provides clarity and reflects
concerns offered during public comment periods in 2010 and 2015
regarding the Office of Protected Resource's issuance of permits
authorizing the acquisition of stranded, releasable California sea
lions (Zalophus californianus) from the National Marine Mammal Health
and Stranding Response Program for the purposes of public display. The
commenters opined that the directive aligns more clearly with the
stated goals of the Marine Mammal Health and Stranding Response Program
by requiring the application for a permit to ``take'' marine mammals
from the wild, leaving potential sourcing of releasable marine mammals
from rehabilitation facilities, appropriately, to the discretion of the
Director of the Office of Protected Resources.
Response: NMFS acknowledges this comment and has finalized the
Procedural Directive as proposed.
Comment 2: One commenter recommended NMFS provide additional
explanation and rationale for finding that either its existing practice
or the procedural directive is consistent with MMPA section 109(h)(3).
Response: NMFS's rationale for both the existing practice and this
Procedural Directive is described in the Additional Background and
Rationale section in the Directive. The rationale outlines each of the
following, which contribute to the rationale: the preamble to the 1993
proposed rule (58 FR 53320) for 50 CFR 216.27, the implementing
regulations allowing the Office Director broad discretion to direct a
releasable animal to be used for a MMPA section 104 purpose in lieu of
being released, and the three relevant permit decisions.
Comment 3: One commenter stated that it is incumbent on NOAA to
provide a certification that a rehabilitated animal will not carry back
into the wild any communicable disease. Additionally, NOAA should
ensure the released marine mammal will become part of the stock or
group that it originally came from.
Response: The Standards for Release, as described in this
Directive, provide an evaluative process to determine if a stranded
marine mammal is suitable for release back to the wild in accordance
with MMPA implementing regulations at 50 CFR 216.27. As part of this
process the attending veterinarian reviews the animal's complete
history including all stranding information, diagnostic test results
required by NMFS, and medical and husbandry records. The goal of
required diagnostic testing is to safeguard the health of wild marine
mammal populations by testing for diseases that pose a significant
morbidity or mortality risk to wild populations. With regards to the
released animal becoming part of the stock or group that it originally
came from, the Standards for Release specify that rehabilitated animals
should be released in a location and at a time of year to maintain
stock fidelity and ensure proximity to conspecifics.
Comment 4: One commenter objected to the draft Directive,
suggesting NMFS instead propose a new process that is compatible with
the principles of the MMPA and is reasonably targeted to and
appropriate for rehabilitated marine mammals deemed releasable.
Response: NMFS believes that this Procedural Directive is
compatible with the principles of the MMPA. The purpose of this
Procedural Directive is to explain that NMFS will no longer accept
applications that specifically seek to obtain releasable rehabilitated
marine mammals, which, as described in the Directive, is consistent
with the goals of both the MMPA's stranding response mandate and the
public display permit provisions.
Procedural Directive Scope
Comment 5: One commenter recommended that NMFS clarify how it is
defining the term ``feasible'' in the context of section 109(h)(3) of
the MMPA--e.g., does it mean that release can be accomplished, or that
release is reasonable or sensible given the entirety of the facts of
the particular situation? Specifically, NMFS should explain the basis
for concluding that the issuance of a permit under section 104(c)
somehow overrides the release mandate under section 109(h).
Response: The MMPA implementing regulations at 50 CFR 216.27 allow
the Office Director broad discretion to direct that a rehabilitated
animal to be used for a MMPA section 104 purpose in lieu of being
released. As described in the Directive, the preamble to the 1993
proposed rule addressed the ``feasibility'' determination. Contrary to
the commenter's suggestion, NMFS has not concluded in this Directive
that issuance of a permit under section 104 ``overrides'' the release
mandate under section 109(h). In fact, this directive is intended to
separate ``takes'' for public display purposes (which are permitted
under section 104) from the rehabilitation-and-release objectives of
section 109(h), while still retaining the Office Director's discretion,
as provided by the regulations, to direct a substitution in certain
circumstances not enumerated in this directive.
As for the commenter's other questions regarding the releasability
determination, as noted above, NMFS has established an evaluative
process (the Standards for Release) to determine if a marine mammal is
suitable for release back to the wild.
Comment 6: One commenter expressed support for NMFS's proposal to
strengthen its analysis of population effects of retaining a releasable
marine mammal as part of its permit application review. The commenter
questioned whether similar scrutiny needs to be given to all aspects of
a permit authorizing the removal of a marine mammal from the wild, if
what the applicant is seeking or what NMFS plans to grant is authority
to retain a releasable animal and not to remove animals from the wild
population. The commenter recommended that NMFS clarify whether all of
the information identified in the application instructions must be
provided if the applicant is seeking a removal permit only as a means
to obtain releasable rehabilitated animals and whether all of those
details will be reflected in the requirements of the permit.
Response: The purpose of this Procedural Directive is to explain
that NMFS will no longer accept applications that specifically seek to
obtain releasable rehabilitated marine mammals. Applicants will be
instructed to submit ``take from the wild'' permit applications with
all required information for that take activity included in the permit
application. If such permit is issued, the Office Director, in his or
her sole discretion, will be responsible for the decision as to whether
a releasable rehabilitated
[[Page 20044]]
animal be substituted for a take from the wild, depending on the
circumstances before the Office Director at the time. This Procedural
Directive is not intended to prescribe the situations, if any, in which
the Office Director would in fact choose to exercise that discretion.
Comment 7: One commenter recommended that NMFS provide additional
guidance on what releasable marine mammals can be used in place of
animals authorized to be removed from the wild under the associated
public display permit.
Response: As noted above and in the Procedural Directive itself,
the purpose of this Directive is to explain that NMFS will no longer
accept permit applications seeking to obtain releasable marine mammals
from the stranding network. The Directive is not intended to prescribe
criteria for what situations, if any, the Office Director would in fact
exercise their discretion to direct a releasable rehabilitated animal
be used for a MMPA section 104 purpose in lieu of being released.
Comment 8: One commenter recommended that the procedural directive
be expanded to address the roles, rights, and responsibilities of
rehabilitation facilities in implementing this policy. The district
court in IMMS v. NMFS, No. 1:11CV318-LG-JMR (S.D.Miss.2014) found that
NMFS could not delegate its authority to the rehabilitation facility to
determine when releasable marine mammals are sent to a public display
facility under NMFS' regulations. However, the court did not go so far
as to say that the rehabilitation facility has no role in this process,
provided that NMFS retains the ultimate decision-making authority.
Response: As noted above, the purpose of this Procedural Directive
is to explain NMFS will no longer accept permit applications seeking to
obtain releasable marine mammals from the stranding network. The
Directive is not intended to prescribe criteria for what situations, if
any, the Office Director would in fact exercise their discretion to
direct a releasable rehabilitated animal be used for a MMPA section 104
purpose in lieu of being released.
Comment 9: One commenter stated that allowing a public display
facility to substitute a stranded releasable marine mammal instead of
``taking'' from the wild is consistent with the requirements of the
MMPA and should not be left to the discretion of the Agency.
Response: As noted above, NMFS' regulations at 50 CFR 216.27 allow
the Office Director (as opposed to permittees or rehabilitation
facilities) broad discretion to direct that a rehabilitated animal to
be used for a MMPA section 104 purpose in lieu of being released.
Comment 10: One commenter expressed concern that the Proposed
Directive would make it nearly impossible for a public display facility
to obtain a releasable marine mammal under any circumstances because it
would expose both the agency and the facility to the very likely risk
of costly litigation initiated by those who oppose any animals in human
care.
Response: The MMPA section 104 allows for permits to be issued for
``take'' of marine mammals for public display purposes provided that
the applicant meets the issuance criteria as outlined in NMFS
implementing regulations (50 CFR part 216, subpart D). As noted above,
NMFS' regulations at 50 CFR 216.27 allow the Office Director broad
discretion to direct that a rehabilitated animal to be used for a MMPA
section 104 purpose (e.g., a permitted use) in lieu of being released.
MMPA Permit Application Process
Comment 11: Several commenters expressed concern that the process
set forth in the Directive (requiring prospective applicants to submit
``take from the wild'' permit applications) would be burdensome because
it would require preparation of an Environmental Assessment and/or an
Environmental Impact Statement under the National Environmental Policy
Act (NEPA).
Response: All MMPA permits require appropriate analysis under NEPA.
Environmental Assessments were prepared for the three permits NOAA
issued authorizing the retention of releasable marine mammals.
Comment 12: A commenter expressed concern that requiring a zoo,
aquarium or marine park that is only interested in retaining a
releasable marine mammal to respond to a multitude of capture from the
wild questions that fail to assess the suitability of the specific
request to retain a releasable marine mammal would impose a regulatory
burden that is unreasonable and unrelated to the best interests of the
animal or the environment. The commenter also commented that
requirements, as described in the Application Instructions and
Supplemental Information for Public Display Permits under the MMPA (OMB
No. 0648-0084), do not make sense with respect to a stranded and
rehabilitated animal.
Response: The purpose of this Procedural Directive is to explain
that NMFS will no longer accept applications that specifically seek to
obtain releasable rehabilitated marine mammals. Applicants will be
instructed to submit ``take from the wild'' permit applications with
all required information for that take activity included in the permit
application, as described in the Application Instructions and
Supplemental Information for Public Display Permits under the MMPA (OMB
No. 0648-0084).
The applications for the three permits NOAA issued authorizing the
retention of releasable marine mammals followed the Application
Instructions and Supplemental Information for Public Display Permits
under the MMPA (OMB No. 0648-0084). These applications addressed all
the applicable questions including the status of the affected stocks
and the anticipated impacts on the species or stocks. Given that these
applications did not propose directly capturing marine mammals from the
wild, the applications referenced the authority of the stranding
network and their procedures when addressing the questions specifically
related to capture from the wild. Under this Procedural Directive,
permit applications will continue to address the status of the species
and the impacts of the removal of the desired number of animals from
the stock or population.
Non-Releasable Rehabilitated Marine Mammals
Comment 14: One commenter recommended NMFS ensure the wording of
this procedural directive adequately take into account the practice of
declaring healthy ice seals non-releasable if they are removed from
their home range for rehabilitation per NOAA's agreement with co-
management groups.
Response: This Procedural Directive does not affect NMFS's process
for making release determinations and the placement process for non-
releasable marine mammals. Additional text was added to the Directive
to clarify.
Dated: May 1, 2018.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2018-09611 Filed 5-4-18; 8:45 am]
BILLING CODE 3510-22-P