83 FR 20042 - National Process for Permit Applications To Retain Releasable Rehabilitated Marine Mammals for Public Display

DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration

Federal Register Volume 83, Issue 88 (May 7, 2018)

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.

[Federal Register Volume 83, Number 88 (Monday, May 7, 2018)]
[Notices]
[Pages 20042-20044]
From the Federal Register Online  [www.thefederalregister.org]
[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