83_FR_20130 83 FR 20042 - National Process for Permit Applications To Retain Releasable Rehabilitated Marine Mammals for Public Display

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)

Page Range20042-20044
FR Document2018-09611

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 Issue 88 (Monday, May 7, 2018)
[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.

-----------------------------------------------------------------------

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



                                               20042                           Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Notices

                                               DEPARTMENT OF COMMERCE                                  produced and artificially propagated                  seeking public input on the scope of the
                                                                                                       Central Valley spring-run (CVSR).                     required NEPA analysis, including the
                                               National Oceanic and Atmospheric                          Steelhead (O. mykiss): threatened,                  range of reasonable alternatives and
                                               Administration                                          naturally produced and artificially                   associated impacts of any alternatives.
                                                                                                       propagated California Central Valley                     Dated: May 1, 2018.
                                               RIN 0648–XG128
                                                                                                       (CCV).
                                                                                                                                                             Angela Somma,
                                               Endangered and Threatened Species;                      Background                                            Chief, Endangered Species Division, Office
                                               Take of Anadromous Fish                                                                                       of Protected Resources, National Marine
                                                                                                         The USFWS and CDFW, under the
                                                                                                       auspices of the San Joaquin River                     Fisheries Service.
                                               AGENCY:  National Marine Fisheries
                                               Service (NMFS), National Oceanic and                    Restoration Program (SJRRP), are                      [FR Doc. 2018–09570 Filed 5–4–18; 8:45 am]
                                               Atmospheric Administration (NOAA),                      working to restore a CVSR Chinook                     BILLING CODE 3510–22–P

                                               Commerce.                                               salmon population in the San Joaquin
                                               ACTION: Notice of Availability of a draft               River. The reintroduced CVSR Chinook
                                                                                                       salmon, taken from one or more out-of-                DEPARTMENT OF COMMERCE
                                               environmental assessment; request for
                                               comments.                                               basin stocks, are designated as a non-
                                                                                                                                                             National Oceanic and Atmospheric
                                                                                                       essential, experimental population
                                                                                                                                                             Administration
                                               SUMMARY:    Notice is hereby given that                 under section 10(j) of the Endangered
                                               NMFS has prepared a draft                               Species Act (ESA), and have associated                RIN 0648–XF100
                                               environmental assessment (EA) under                     4(d) take provisions (78 FR 79622). The
                                               the National Environmental Policy Act                   SJRRP determined that a conservation                  National Process for Permit
                                               (NEPA) describing the potential effects                 hatchery would be the preferred and                   Applications To Retain Releasable
                                               of the continued operation of one                       primary strategy for reintroducing CVSR               Rehabilitated Marine Mammals for
                                               hatchery program in the San Joaquin                     Chinook salmon to the San Joaquin                     Public Display
                                               River Basin of California. The Hatchery                 River. The San Joaquin River Salmon                   AGENCY:  National Marine Fisheries
                                               and Genetic Management Plan (HGMP)                      Conservation and Research Program                     Service (NMFS), National Oceanic and
                                               for the program was prepared and                        (Conservation Program) involves the                   Atmospheric Administration (NOAA),
                                               submitted by the United States Fish and                 operation of two facilities: the Salmon               Commerce.
                                               Wildlife Service (USFWS) and the                        Conservation and Research Facility
                                                                                                                                                             ACTION: Notice; response to comments.
                                               California Department of Fish and                       (SCARF) currently under construction,
                                               Wildlife (CDFW). All comments and                       with completion expected summer of                    SUMMARY:   The National Marine
                                               other information received will become                  2018, and an interim SCARF (Interim                   Fisheries Service (NMFS) announces the
                                               part of the public record and will be                   Facility) currently in operation. The                 availability of its final Procedural
                                               available for review.                                   Conservation Program is operated as an                Directive clarifying the process for
                                               DATES: Comments or requests for a                       Integrated-Recovery hatchery program,                 eligible permit applicants to obtain
                                               public hearing on the applications must                 intended to help meet fisheries                       releasable marine mammals for public
                                               be received at the appropriate address or               management objectives while achieving                 display purposes under the Marine
                                               fax number (see ADDRESSES) no later                     restoration and recovery goals.                       Mammal Protection Act (MMPA). NMFS
                                               than 5 p.m. Pacific standard time on                      This CVSR Chinook salmon HGMP                       will no longer grant permits for the
                                               June 6, 2018.                                           submitted by the USFWS and CDFW,                      specific purpose of retaining releasable
                                                                                                       pursuant to section 10(a)(1)(A) of the                marine mammals for public display.
                                               ADDRESSES: Written comments on the
                                                                                                       ESA (16 U.S.C. 1531 et seq.) and                      Instead, applicants will now need to
                                               draft EA should be addressed to the                     regulations governing listed fish and
                                               NMFS California Central Valley Office,                                                                        apply for a permit to take (collect)
                                                                                                       wildlife permits (50 CFR part 222),                   animals from the wild pursuant to the
                                               Attn: San Joaquin Hatchery EA, 650                      provides guidance on the management
                                               Capitol Mall, Suite 5–100, Sacramento,                                                                        MMPA.
                                                                                                       and operation of the SCARF and Interim                DATES: This final Procedural Directive
                                               CA 95814. Comments may also be                          Facility in the San Joaquin River Basin.
                                               submitted via fax to 916–930–3629 or by                                                                       will be applicable as of May 7, 2018.
                                                                                                       The HGMP and the associated section
                                               email to SanJoaquinHatcheryEA.wcr@                      10(a)(1)(A) enhancement permit                        ADDRESSES: The Procedural Directive is
                                               noaa.gov. Include in the subject line of                application (20571) were made available               available in electronic form via the
                                               the email comment the following                         for public review and comment on July                 internet at https://www.fisheries.noaa.
                                               identifier: Comments on San Joaquin                     27, 2017 (82 FR 34931). On August 8,                  gov/national/laws-and-policies/
                                               Hatchery EA. When commenting on the                     2017, NMFS determined that the                        protected-resources-policy-directives.
                                               draft EA, please refer to the specific                  submitted HGMP was sufficient for                     FOR FURTHER INFORMATION CONTACT:
                                               page number and line number of the                      consideration under section 10(a)(1)(A)               Jaclyn Taylor, NMFS, Office of
                                               subject of your comment. The                            of the ESA. The draft environmental                   Protected Resources, (301) 427–8402,
                                               documents are available on the internet                 assessment available for comment                      Jaclyn.Taylor@noaa.gov.
                                               at www.westcoast.fisheries.noaa.gov.                    evaluates the potential effects of                    SUPPLEMENTARY INFORMATION: NMFS
                                               FOR FURTHER INFORMATION CONTACT:                        approving the CVSR Chinook salmon                     developed a national Procedural
                                               Amanda Cranford, Sacramento, CA, at                     HGMP and issuing an ESA section                       Directive clarifying the process for
                                               phone number: (916) 930–3706, via fax:                  10(a)(1)(A) Permit 20571 to the USFWS                 eligible permit applicants to obtain
                                               (916) 930–3629, or via email:                           and CDFW.                                             releasable marine mammals for public
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                                               Amanda.Cranford@noaa.gov.                                                                                     display purposes under the MMPA.
                                               SUPPLEMENTARY INFORMATION:
                                                                                                       Authority                                                NMFS will no longer accept
                                                                                                         NEPA requires Federal agencies to                   applications for MMPA section 104
                                               ESA-Listed Species Covered in This                      conduct an environmental analysis of                  permits that specifically seek to obtain
                                               Notice                                                  their proposed actions to determine if                releasable rehabilitated marine
                                                 Chinook salmon (Oncorhynchus                          the actions may affect the human                      mammals for public display purposes.
                                               tshawytscha): threatened, naturally                     environment. Therefore, NMFS is                       NMFS will instead require prospective


                                          VerDate Sep<11>2014   17:38 May 04, 2018   Jkt 244001   PO 00000   Frm 00011   Fmt 4703   Sfmt 4703   E:\FR\FM\07MYN1.SGM   07MYN1


                                                                               Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Notices                                              20043

                                               applicants to apply for a permit                        purpose in lieu of being released, and                overrides the release mandate under
                                               authorizing actual take (collect) from the              the three relevant permit decisions.                  section 109(h).
                                               wild. In the event NMFS grants a permit                    Comment 3: One commenter stated                       Response: The MMPA implementing
                                               for take from the wild, the NMFS OPR                    that it is incumbent on NOAA to                       regulations at 50 CFR 216.27 allow the
                                               Director may then, at his or her                        provide a certification that a                        Office Director broad discretion to direct
                                               discretion, require that a releasable                   rehabilitated animal will not carry back              that a rehabilitated animal to be used for
                                               rehabilitated marine mammal be                          into the wild any communicable                        a MMPA section 104 purpose in lieu of
                                               substituted for the authorized capture                  disease. Additionally, NOAA should                    being released. As described in the
                                               from the wild, in accordance with 50                    ensure the released marine mammal                     Directive, the preamble to the 1993
                                               CFR 216.27.                                             will become part of the stock or group                proposed rule addressed the
                                                  On November 15, 2017, NMFS                           that it originally came from.                         ‘‘feasibility’’ determination. Contrary to
                                               published the draft national Procedure                     Response: The Standards for Release,               the commenter’s suggestion, NMFS has
                                               for Permit Applications to Retain                       as described in this Directive, provide               not concluded in this Directive that
                                               Releasable Rehabilitated Marine                         an evaluative process to determine if a               issuance of a permit under section 104
                                               Mammals for Public Display for a 30-                    stranded marine mammal is suitable for                ‘‘overrides’’ the release mandate under
                                               day public comment period (82 FR                        release back to the wild in accordance                section 109(h). In fact, this directive is
                                               52880). Comments received are                           with MMPA implementing regulations                    intended to separate ‘‘takes’’ for public
                                               available on regulations.gov at https://                at 50 CFR 216.27. As part of this process             display purposes (which are permitted
                                               www.regulations.gov/docket?D=NOAA-                      the attending veterinarian reviews the                under section 104) from the
                                               NMFS-2017-0096. Substantive and                         animal’s complete history including all               rehabilitation-and-release objectives of
                                               relevant comments and NMFS’                             stranding information, diagnostic test                section 109(h), while still retaining the
                                               responses are included below.                           results required by NMFS, and medical                 Office Director’s discretion, as provided
                                                                                                       and husbandry records. The goal of                    by the regulations, to direct a
                                               General Comments
                                                                                                       required diagnostic testing is to                     substitution in certain circumstances
                                                  Comment 1: Several commenters                                                                              not enumerated in this directive.
                                               expressed support for the draft                         safeguard the health of wild marine
                                                                                                                                                                As for the commenter’s other
                                               Procedural Directive, stating that it                   mammal populations by testing for
                                                                                                                                                             questions regarding the releasability
                                               provides clarity and reflects concerns                  diseases that pose a significant
                                                                                                                                                             determination, as noted above, NMFS
                                               offered during public comment periods                   morbidity or mortality risk to wild
                                                                                                                                                             has established an evaluative process
                                               in 2010 and 2015 regarding the Office of                populations. With regards to the                      (the Standards for Release) to determine
                                               Protected Resource’s issuance of permits                released animal becoming part of the                  if a marine mammal is suitable for
                                               authorizing the acquisition of stranded,                stock or group that it originally came                release back to the wild.
                                               releasable California sea lions (Zalophus               from, the Standards for Release specify                  Comment 6: One commenter
                                               californianus) from the National Marine                 that rehabilitated animals should be                  expressed support for NMFS’s proposal
                                               Mammal Health and Stranding                             released in a location and at a time of               to strengthen its analysis of population
                                               Response Program for the purposes of                    year to maintain stock fidelity and                   effects of retaining a releasable marine
                                               public display. The commenters opined                   ensure proximity to conspecifics.                     mammal as part of its permit
                                               that the directive aligns more clearly                     Comment 4: One commenter objected                  application review. The commenter
                                               with the stated goals of the Marine                     to the draft Directive, suggesting NMFS               questioned whether similar scrutiny
                                               Mammal Health and Stranding                             instead propose a new process that is                 needs to be given to all aspects of a
                                               Response Program by requiring the                       compatible with the principles of the                 permit authorizing the removal of a
                                               application for a permit to ‘‘take’’                    MMPA and is reasonably targeted to and                marine mammal from the wild, if what
                                               marine mammals from the wild, leaving                   appropriate for rehabilitated marine                  the applicant is seeking or what NMFS
                                               potential sourcing of releasable marine                 mammals deemed releasable.                            plans to grant is authority to retain a
                                               mammals from rehabilitation facilities,                    Response: NMFS believes that this                  releasable animal and not to remove
                                               appropriately, to the discretion of the                 Procedural Directive is compatible with               animals from the wild population. The
                                               Director of the Office of Protected                     the principles of the MMPA. The                       commenter recommended that NMFS
                                               Resources.                                              purpose of this Procedural Directive is               clarify whether all of the information
                                                  Response: NMFS acknowledges this                     to explain that NMFS will no longer                   identified in the application
                                               comment and has finalized the                           accept applications that specifically                 instructions must be provided if the
                                               Procedural Directive as proposed.                       seek to obtain releasable rehabilitated               applicant is seeking a removal permit
                                                  Comment 2: One commenter                             marine mammals, which, as described                   only as a means to obtain releasable
                                               recommended NMFS provide additional                     in the Directive, is consistent with the              rehabilitated animals and whether all of
                                               explanation and rationale for finding                   goals of both the MMPA’s stranding                    those details will be reflected in the
                                               that either its existing practice or the                response mandate and the public                       requirements of the permit.
                                               procedural directive is consistent with                 display permit provisions.                               Response: The purpose of this
                                               MMPA section 109(h)(3).                                                                                       Procedural Directive is to explain that
                                                                                                       Procedural Directive Scope
                                                  Response: NMFS’s rationale for both                                                                        NMFS will no longer accept
                                               the existing practice and this Procedural                  Comment 5: One commenter                           applications that specifically seek to
                                               Directive is described in the Additional                recommended that NMFS clarify how it                  obtain releasable rehabilitated marine
                                               Background and Rationale section in the                 is defining the term ‘‘feasible’’ in the              mammals. Applicants will be instructed
                                               Directive. The rationale outlines each of               context of section 109(h)(3) of the                   to submit ‘‘take from the wild’’ permit
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                                               the following, which contribute to the                  MMPA—e.g., does it mean that release                  applications with all required
                                               rationale: the preamble to the 1993                     can be accomplished, or that release is               information for that take activity
                                               proposed rule (58 FR 53320) for 50 CFR                  reasonable or sensible given the entirety             included in the permit application. If
                                               216.27, the implementing regulations                    of the facts of the particular situation?             such permit is issued, the Office
                                               allowing the Office Director broad                      Specifically, NMFS should explain the                 Director, in his or her sole discretion,
                                               discretion to direct a releasable animal                basis for concluding that the issuance of             will be responsible for the decision as
                                               to be used for a MMPA section 104                       a permit under section 104(c) somehow                 to whether a releasable rehabilitated


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                                               20044                           Federal Register / Vol. 83, No. 88 / Monday, May 7, 2018 / Notices

                                               animal be substituted for a take from the               rehabilitated animal to be used for a                 to submit ‘‘take from the wild’’ permit
                                               wild, depending on the circumstances                    MMPA section 104 purpose in lieu of                   applications with all required
                                               before the Office Director at the time.                 being released.                                       information for that take activity
                                               This Procedural Directive is not                           Comment 10: One commenter                          included in the permit application, as
                                               intended to prescribe the situations, if                expressed concern that the Proposed                   described in the Application
                                               any, in which the Office Director would                 Directive would make it nearly                        Instructions and Supplemental
                                               in fact choose to exercise that                         impossible for a public display facility              Information for Public Display Permits
                                               discretion.                                             to obtain a releasable marine mammal                  under the MMPA (OMB No. 0648–
                                                  Comment 7: One commenter                             under any circumstances because it
                                                                                                                                                             0084).
                                               recommended that NMFS provide                           would expose both the agency and the
                                               additional guidance on what releasable                  facility to the very likely risk of costly               The applications for the three permits
                                               marine mammals can be used in place                     litigation initiated by those who oppose              NOAA issued authorizing the retention
                                               of animals authorized to be removed                     any animals in human care.                            of releasable marine mammals followed
                                               from the wild under the associated                         Response: The MMPA section 104                     the Application Instructions and
                                               public display permit.                                  allows for permits to be issued for                   Supplemental Information for Public
                                                  Response: As noted above and in the                  ‘‘take’’ of marine mammals for public                 Display Permits under the MMPA (OMB
                                               Procedural Directive itself, the purpose                display purposes provided that the                    No. 0648–0084). These applications
                                               of this Directive is to explain that NMFS               applicant meets the issuance criteria as              addressed all the applicable questions
                                               will no longer accept permit                            outlined in NMFS implementing                         including the status of the affected
                                               applications seeking to obtain releasable               regulations (50 CFR part 216, subpart                 stocks and the anticipated impacts on
                                               marine mammals from the stranding                       D). As noted above, NMFS’ regulations                 the species or stocks. Given that these
                                               network. The Directive is not intended                  at 50 CFR 216.27 allow the Office                     applications did not propose directly
                                               to prescribe criteria for what situations,              Director broad discretion to direct that
                                                                                                                                                             capturing marine mammals from the
                                               if any, the Office Director would in fact               a rehabilitated animal to be used for a
                                                                                                                                                             wild, the applications referenced the
                                               exercise their discretion to direct a                   MMPA section 104 purpose (e.g., a
                                               releasable rehabilitated animal be used                 permitted use) in lieu of being released.             authority of the stranding network and
                                               for a MMPA section 104 purpose in lieu                                                                        their procedures when addressing the
                                                                                                       MMPA Permit Application Process                       questions specifically related to capture
                                               of being released.
                                                  Comment 8: One commenter                                Comment 11: Several commenters                     from the wild. Under this Procedural
                                               recommended that the procedural                         expressed concern that the process set                Directive, permit applications will
                                               directive be expanded to address the                    forth in the Directive (requiring                     continue to address the status of the
                                               roles, rights, and responsibilities of                  prospective applicants to submit ‘‘take               species and the impacts of the removal
                                               rehabilitation facilities in implementing               from the wild’’ permit applications)                  of the desired number of animals from
                                               this policy. The district court in IMMS                 would be burdensome because it would                  the stock or population.
                                               v. NMFS, No. 1:11CV318–LG–JMR                           require preparation of an Environmental
                                               (S.D.Miss.2014) found that NMFS could                   Assessment and/or an Environmental                    Non-Releasable Rehabilitated Marine
                                               not delegate its authority to the                       Impact Statement under the National                   Mammals
                                               rehabilitation facility to determine when               Environmental Policy Act (NEPA).                        Comment 14: One commenter
                                               releasable marine mammals are sent to                      Response: All MMPA permits require
                                                                                                                                                             recommended NMFS ensure the
                                               a public display facility under NMFS’                   appropriate analysis under NEPA.
                                                                                                       Environmental Assessments were                        wording of this procedural directive
                                               regulations. However, the court did not
                                                                                                       prepared for the three permits NOAA                   adequately take into account the
                                               go so far as to say that the rehabilitation
                                               facility has no role in this process,                   issued authorizing the retention of                   practice of declaring healthy ice seals
                                               provided that NMFS retains the ultimate                 releasable marine mammals.                            non-releasable if they are removed from
                                               decision-making authority.                                 Comment 12: A commenter expressed                  their home range for rehabilitation per
                                                  Response: As noted above, the                        concern that requiring a zoo, aquarium                NOAA’s agreement with co-
                                               purpose of this Procedural Directive is                 or marine park that is only interested in             management groups.
                                               to explain NMFS will no longer accept                   retaining a releasable marine mammal to                 Response: This Procedural Directive
                                               permit applications seeking to obtain                   respond to a multitude of capture from                does not affect NMFS’s process for
                                               releasable marine mammals from the                      the wild questions that fail to assess the            making release determinations and the
                                               stranding network. The Directive is not                 suitability of the specific request to                placement process for non-releasable
                                               intended to prescribe criteria for what                 retain a releasable marine mammal                     marine mammals. Additional text was
                                               situations, if any, the Office Director                 would impose a regulatory burden that                 added to the Directive to clarify.
                                               would in fact exercise their discretion to              is unreasonable and unrelated to the
                                               direct a releasable rehabilitated animal                best interests of the animal or the                     Dated: May 1, 2018.
                                               be used for a MMPA section 104                          environment. The commenter also                       Donna S. Wieting,
                                               purpose in lieu of being released.                      commented that requirements, as                       Director, Office of Protected Resources,
                                                  Comment 9: One commenter stated                      described in the Application                          National Marine Fisheries Service.
                                               that allowing a public display facility to              Instructions and Supplemental                         [FR Doc. 2018–09611 Filed 5–4–18; 8:45 am]
                                               substitute a stranded releasable marine                 Information for Public Display Permits                BILLING CODE 3510–22–P
                                               mammal instead of ‘‘taking’’ from the                   under the MMPA (OMB No. 0648–
                                               wild is consistent with the requirements                0084), do not make sense with respect
daltland on DSKBBV9HB2PROD with NOTICES




                                               of the MMPA and should not be left to                   to a stranded and rehabilitated animal.
                                               the discretion of the Agency.                              Response: The purpose of this
                                                  Response: As noted above, NMFS’                      Procedural Directive is to explain that
                                               regulations at 50 CFR 216.27 allow the                  NMFS will no longer accept
                                               Office Director (as opposed to                          applications that specifically seek to
                                               permittees or rehabilitation facilities)                obtain releasable rehabilitated marine
                                               broad discretion to direct that a                       mammals. Applicants will be instructed


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Document Created: 2018-05-05 02:48:32
Document Modified: 2018-05-05 02:48:32
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionNotices
ActionNotice; response to comments.
DatesThis final Procedural Directive will be applicable as of May 7, 2018.
ContactJaclyn Taylor, NMFS, Office of Protected Resources, (301) 427-8402, [email protected]
FR Citation83 FR 20042 
RIN Number0648-XF10

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