[Federal Register Volume 72, Number 177 (Thursday, September 13, 2007)]
[Proposed Rules]
[Pages 52339-52343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18106]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 070809454-7459-01]
RIN 0648-AV82


Marine Mammals; Advance Notice of Proposed Rulemaking

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Advance notice of proposed rulemaking (ANPR); request for 
comments.

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SUMMARY: NMFS is considering proposing changes to its implementing 
regulations, and criteria governing the issuance of permits for 
scientific research and enhancement activities under section 104 of the 
Marine Mammal Protection Act (MMPA), and is soliciting public comment 
to better inform the process. Permits to take marine mammal species are 
governed by the MMPA and NMFS implementing regulations at 50 CFR part 
216. For threatened and endangered marine mammal species, permits are 
also governed by the Endangered Species Act (ESA) and 50 CFR part 222. 
On May 10, 1996, a final rule was published establishing requirements 
for issuing permits to take, import, or export marine mammals 
(including endangered and threatened marine mammals) and marine mammal 
parts under NMFS jurisdiction for purposes of scientific research and 
enhancement, photography, and public display (for captures and initial 
imports), and providing procedures for determining the disposition of 
rehabilitated stranded marine mammals. NMFS intends to streamline and 
clarify general permitting requirements and requirements for scientific 
research and enhancement permits, simplify procedures for transferring 
marine mammal parts, possibly apply the General Authorization (GA) to 
research activities involving Level A harassment of non-ESA listed 
marine mammals, and implement a 'permit application cycle' for 
application submission and processing of all marine mammal permits. 
NMFS intends to write regulations for photography permits and is 
considering whether this activity should be covered by the GA. Any 
other recommendations received in response to this ANPR regarding 
regulations at 50 CFR part 216 will be considered prior to proposed 
rulemaking.

DATES: Written comments must be received at the appropriate address or 
facsimile (fax) number (see ADDRESSES) no later than 5 p.m. local time 
on November 13, 2007.

ADDRESSES: Written comments should be sent to: Chief, Permits, 
Conservation and Education Division, Attn: Permit Regulations ANPR, 
Office of Protected Resources, NMFS, 1315 East-West Highway, Room 
13705, Silver Spring, MD 20910.
    Comments may also be submitted by facsimile at (301)427-2521, 
provided the facsimile is confirmed by hard copy submitted by mail and 
postmarked no later than the closing date of the comment period.
    Comments may also be submitted by e-mail. The mailbox address for 
providing e-mail comments is [email protected]. Include in the 
subject line of the e-mail comment the following document identifier: 
Permit Regulations ANPR, or
    The Federal e-Rulemaking Portal: http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Amy Sloan, Fishery Biologist, Office 
of Protected Resources, NMFS, at (301) 713-2289.

SUPPLEMENTARY INFORMATION: NMFS has authority, delegated from the 
Secretary of Commerce, to issue permits for research and enhancement 
activities under Section 104 of the MMPA (16 U.S.C. 1361 et seq.) and 
section 10(a)(1)(A) of the ESA (16 U.S.C. 1531 et seq.). Permits to 
take marine mammal species are governed by the MMPA, ESA, and NMFS 
implementing regulations at 50 CFR parts 216 and 222. As a Federal 
agency, issuance of permits by NMFS is also governed by the procedural 
requirements and provisions of the Administrative Procedure Act (APA) 
and the National Environmental Policy Act (NEPA).
    The APA is the law under which federal regulatory agencies, 
including NMFS, create the rules and regulations necessary to implement 
and enforce major legislative acts such as the MMPA and ESA. Under the 
APA, NMFS is required to publish in the Federal Register descriptions 
of rules of procedure, substantive rules of general applicability, and 
make available to the public statements of policy and interpretation, 
administrative staff manuals and instructions. NEPA requires Federal 
agencies to integrate environmental values into their decision making 
processes by considering the environmental impacts of their proposed 
actions and reasonable alternatives to those actions. The requirements 
of NEPA apply to NMFS ``decision-making process'' for issuance of 
permits. The NOAA Administrative Order No. 216-6 (NAO 216-6), 
Environmental Review Procedures for Implementing the National 
Environmental Policy Act, is also an agency guidance document for 
applying the requirements of NEPA to agency actions, including permit 
issuance.
    The following paragraphs provide some possible regulatory changes 
being considered by NMFS. The changes being considered are found in 50 
CFR part 216, most in subpart D, although comments or recommendations 
regarding any of the subparts will be considered. The sections 
identified are either followed by recommendations from NMFS on possible 
alternatives or changes to the current language, or a general 
solicitation by NMFS to the public for comments pertaining to that 
section. Several of the regulatory changes would require an amendment 
or change to the MMPA before implementation could be effective.

Part 216, Regulations Governing the Taking and Importing of Marine 
Mammals

Subpart A - Introduction

    NMFS does not have any recommended changes for Sec.  216.1 
(Purpose) or 216.2 (Scope). Do either of these sections require further 
consideration or clarification?
    Sec.  216.3 Definitions: Are there existing definitions relevant to 
the marine mammal permitting process that need clarification? Are there 
any other definitions that need clarification, or definitions that need 
to be added to these regulations?
    Are there any other sections in Subpart A whose language requires 
further consideration or clarification?

[[Page 52340]]

Subpart B - Prohibitions

    Sec.  216.14 Marine mammals taken before the MMPA: Should we add 
provisions to authorize export in addition to import under Sec.  216.14 
(c)?
    Sec.  216.15 Depleted species: Should we clarify that any species 
or population stock listed as endangered or threatened under the ESA is 
automatically listed as depleted under the MMPA?
    Do any of the remaining sections in Subpart B require further 
consideration or clarification?

Subpart C - General Exceptions

    Several regulatory changes are being considered by NMFS in this 
subpart and include, but are not limited to, the following:
    Sec.  216.23 Native exceptions: Does NMFS need to clarify sections 
regarding transfer of marine mammal parts? Do we need to include 
provisions for authorizing transfers of marine mammal parts for 
research purposes? If so, be explicit on how this should occur and 
whether this should be combined with transfers of other marine mammal 
parts legally taken, or kept under this section.
    Sec.  216.25 Exempted marine mammals and marine mammal products: 
Should this section be consolidated with other sections (e.g., 
incorporate this Sec.  216.25 into Sec. Sec.  216.14 and 216.12; remove 
Sec.  216.25)? Do we then reserve this section (or use another section) 
for a consolidated parts transfer section (for parts taken legally 
under Sec. Sec.  216.22, 216.26, and 216.37) if possible? Subpart C is 
a substantial component of part 216. Therefore, any comments or 
recommendations regarding whether the language in other sections in 
subpart C require further consideration or clarification would be 
appreciated.

Subpart D - Special Exceptions

    Sec.  216.31 Definitions: Are there any definitions relevant to 
marine mammal permitting procedures that need to be added?
    Sec.  216.32 Scope: Does the scope of this subpart need to be 
modified or clarified in any manner?
    Sec.  216.33 Permit application submission, review, and decision 
procedures: Generally, NMFS is considering reorganizing and/or 
consolidating permitting regulation Sec. Sec.  216.33 (Permit 
application, submission, review, and decision procedures), 216.34 
(Issuance criteria), 216.35 (Permit restrictions), 216.36 (Permit 
conditions), and 216.41 (Permits for scientific research and 
enhancement) where possible. We have included some specific 
recommendations; however any recommendations where regulations need 
consolidation or simplification in the following sections, and how this 
might be achieved, would be considered.
    Sec.  216.33 (c) Initial review: NMFS regulations currently require 
the agency to determine that a proposed permit is categorically 
excluded from the need to prepare further environmental documentation, 
or to prepare an environmental assessment (EA) with a finding of no 
significant impact (FONSI) or a final environmental impact statement 
(EIS), during initial review of the application and prior to making it 
available for public comment and review pursuant to Sec.  216.33(d). 
This sequence precludes public input on the application that may 
influence NMFS' determination regarding whether the activity requires 
an EA or EIS. Therefore, NMFS is considering a revision to this 
section, and the corresponding language at 216.33(d) such that NEPA 
documentation is not required at the time an application is made 
available for public review and comment. NMFS Administrative Order 216-
6 stipulates that issuance of scientific research, enhancement, 
photography, and public display permits pursuant to the MMPA and 
issuance of research permits pursuant to the ESA are, in general, 
categorically excluded from the need to prepare further environmental 
documentation because, as a class, they do not have significant 
environmental impacts. With this recommended change NMFS would continue 
to evaluate the potential environmental impacts of permits, but could 
conduct this assessment after the close of the comment period on the 
application, when comments from the public and other agencies could be 
considered in that assessment.
    Sec.  216.33(d) Notice of receipt and application review: 
Consistent with the proposed changes to Sec.  216.33(c) regarding NEPA, 
NMFS proposes to revise the requirements for including a NEPA statement 
in the notice of receipt of an application. Where NMFS believes a 
permit would be categorically excluded from the need to prepare further 
environmental documentation, the notice will so state. If that 
determination is based on information in an existing EA/FONSI or Final 
EIS, that document will be referenced in the notice and made available 
simultaneously with the application. When no previous NEPA 
documentation relevant to the proposed activity is available, the 
notice will solicit public input on the appropriate level of NEPA 
documentation concurrent with review of the application. After the 
close of the comment period on the application, NMFS would determine 
the appropriate level of NEPA documentation for the activity, in 
consideration of comments received, information presented in the 
application, and the best available information. NMFS' final NEPA 
determination on a specific application would be published in the 
Federal Register prior to or concurrent with notice of permit issuance 
or denial pursuant to Sec.  216.33(e).
    Sec.  216.33(e) Issuance or denial procedures: Consistent with MMPA 
section 104(d), the current regulations state that ``within 30 days of 
the close of the public comment period the Office Director will issue 
or deny a special exception permit.'' NMFS is considering revising this 
section to reconcile the ESA section 7 and NEPA compliance timelines 
with statutory requirements for when permit decisions must be made 
relative to the close of the comment period. For example, when NMFS 
determines, subsequent to the public comment period on an application, 
that issuance of a proposed permit requires preparation of an EA or 
EIS, processing of the application cannot be completed within 30 days 
of the close of the comment period. Under the current regulations, NMFS 
would have to deny the permit because the appropriate NEPA 
documentation could not be completed in time to support a decision to 
issue. Rather than deny such permits, NMFS proposes to defer a decision 
on the application until the appropriate NEPA documentation is 
completed. Similarly, when formal consultation is required under 
section 7 of the ESA, which allows 135 days or more for consultation 
and completion of a Biological Opinion, processing of the application 
cannot be completed within 30 days of the close of the comment period. 
Rather than deny such permits, NMFS proposes to defer a decision on the 
application until the section 7 consultation is completed. In both 
cases NMFS would publish a notice in the FR within 30 days of the close 
of the comment period announcing that a decision on the specific 
application has been deferred pending completion of the appropriate 
NEPA and ESA section 7 analyses.
    Sec.  216.33(e)(4): For permits involving marine mammals listed as 
endangered or threatened under the ESA, NMFS is required to determine 
whether the permit is consistent with the requirements of section 10(d) 
of the ESA. NMFS would appreciate comments on how to determine whether 
an applicant has applied for a permit ``in good faith'' and whether the 
permit

[[Page 52341]]

``will operate to the disadvantage of such endangered or threatened 
species.''
    Sec.  216.34 Issuance criteria: NMFS would appreciate any 
recommendations on whether or how this section should be clarified or 
consolidated with other sections. In support of the applicant's 
demonstration that the proposed activity is humane, NMFS is considering 
requiring proof of Institutional Animal Care and Use Committee approval 
of the proposed activity where such approval would be required pursuant 
to the Animal Welfare Act. Any comments on this would be appreciated.
    Sec.  216.35 Permit restrictions: One consideration by NMFS is to 
provide for only minor amendments to original permits (see Sec.  
216.39), not major vs. minor as currently exists, which would require 
modifying language in this section. Any proposed change resulting in 
the need for an increased level of take or risk of adverse impact above 
those authorized in the original permit would no longer be considered 
under an amendment, and would require a new permit application. Since 
the current regulatory process for reviewing and issuing major 
amendments requires a public comment and review period, the time it 
takes to issue a major amendment is consistent with the time it takes 
to process a new application. Amendments would be issued that only 
covered those activities that are currently consistent with a minor 
amendment. One exception to this would be that proposed changes in 
location, species, and numbers where no take is involved (e.g., import 
of parts or specimens legally acquired by a foreign institution) would 
be a minor amendment. Similarly, NMFS is considering removing the part 
in Sec.  216.35(b) that provides for a 1 year extension of the original 
permit. If this change were implemented neither the life of the 
original permit nor any subsequent amendment would exceed five years 
from the effective date of the permit. NMFS would appreciate any 
comments on this recommendation.
    The regulations require individuals conducting permitted activities 
to possess qualifications commensurate with their duties and 
responsibilities, or be under the direct supervision of a person with 
such qualifications. NMFS is seeking input on whether it should 
promulgate regulations specifying minimum standards for such 
qualifications or specific criteria by which applicants' qualifications 
and those of other personnel listed in the application could be 
evaluated.
    Sec.  216.36 Permit conditions: NMFS is considering consolidating 
this section with other sections of permit regulations (e.g., Sec.  
216.35, Permit restrictions) that also contain conditions pertinent to 
marine mammal permits. NMFS would appreciate any recommendations on how 
this might best be achieved.
    Sec.  216.37 Marine mammal parts: This section of the regulations 
is the subject of much confusion in interpretation and implementation. 
This section is similar to the transfer requirements in Sec.  216.22. 
NMFS is interested in clarifying and consolidating this section with 
other sections (Sec. Sec.  216.22 and 216.26) involving the transfer of 
parts legally taken, such that the same provisions would apply to the 
subsequent transfer of any marine mammal part that was already legally 
taken under the MMPA and/or ESA. Should there be different requirements 
for the transfer of parts legally taken from an ESA-listed versus a non 
ESA-listed marine mammal? Does there need to be any clarification on 
how to apply or receive authorization for a transfer, and for 
determining who can be authorized to receive marine mammal parts and 
what documentation is required? Are the reporting requirements adequate 
and necessary, and should they be modified in any way? Does the 
language in Sec.  216.37(d) regarding export and re-import need to be 
clarified, and if so, how?
    NMFS seeks recommendations for developing regulatory language to 
streamline and govern the issuance of research permits involving 
collection, receipt, import, export, and archiving marine mammal parts 
for future opportunistic research. Currently marine mammal parts taken 
or obtained under permit may be transferred to another person pursuant 
to this section of the regulations, but there is no mechanism for 
facilitating the initial collection of marine mammal parts by 
institutions for eventual use for research purposes where the bona fide 
criteria required in section 104(c)(3) of the MMPA cannot be met for 
each and every part obtained by the institution. We are considering 
establishing guidelines in this section for determining when such 
activities would satisfy the bona fide scientific purpose requirement 
when the purpose of the initial receipt of the part may be unknown. We 
are also considering establishing standardized documentation and 
reporting requirements for permits involving marine mammal parts to 
demonstrate that the parts are taken legally and in a humane manner and 
that all requirements for applicable domestic and foreign laws have 
been met regarding importation and exportation.
    NMFS is also considering adding to this section requirements and 
procedures governing the development, use, distribution or transfer, 
and prohibited sale of cell lines derived from marine mammal tissues. 
We are also considering similar regulations pertaining to gametes used 
by the public display industry and research community in assisted 
reproductive techniques of captive marine mammals. Any recommendations 
or comments on these topics would be appreciated.
    Sec.  216.39 Permit amendments: One consideration already mentioned 
(in Sec.  216.35) is to provide for only one amendment type, not major 
vs. minor. This would require consolidating this section considerably. 
Under this change the language in this section would be consistent with 
the following:
    (a) General. Special exception permits may be amended by the Office 
Director. Amendments may be made to permits in response to, or 
independent of, a request from the permit holder. Amendments must be 
consistent with the Acts and comply with the applicable provisions of 
this subpart. Special exception permits may be amended by the Office 
Director without need for further public review or comment.
    (1) An amendment means any change to the permit specific conditions 
under Sec. 216.36(a) provided that the amendment does not result in any 
of the following:
    (i) An increase in the number and species of marine mammals that 
are authorized to be taken, imported, exported, or otherwise affected;
    (ii) A change in the manner in which these marine mammals may be 
taken, imported, exported, or otherwise affected, where such change 
would result in an increased level of take or risk of adverse impact; 
and
    (iii) A change in the location(s) in which the marine mammals may 
be taken, from which they may be imported, and to which they may be 
exported, as applicable.
    (2) A request involving changes to the location, species, and 
number of marine mammal parts or specimens received, imported, or 
exported, where no take is involved, would qualify as an amendment.
    (b) Amendment requests and proposals.
    (1) Requests by a permit holder for an amendment must be submitted 
in writing and include the following:
    (i) The purpose and nature of the amendment;
    (ii) Information, not previously submitted as part of the permit 
application or subsequent reports, necessary to determine whether the

[[Page 52342]]

amendment satisfies all issuance criteria set forth at Sec. 216.34, 
and, as appropriate, Sec. 216.41, Sec. 216.42, and Sec. 216.43.
    (iii) Any additional information required by the Office Director 
for purposes of reviewing the proposed amendment.
    (2) If an amendment is proposed by the Office Director, the permit 
holder will be notified of the proposed amendment, together with an 
explanation.
    (c) Review of proposed amendments.
    (i) After reviewing all appropriate information, the Office 
Director will provide the permit holder with written notice of the 
decision on a proposed or requested amendment, together with an 
explanation for the decision.
    (ii) An amendment will be effective upon a final decision by the 
Office Director.
    Sec.  216.40 Penalties and permit sanctions: NMFS is considering 
specifying criteria and procedures for the suspension, revocation, 
modification, and denial of scientific research or enhancement permits, 
in addition to, but consistent with, the provisions of subpart D of 15 
CFR part 904. For example, NMFS is considering promulgating specific 
regulations for suspension, revocation, modification, and denial of 
scientific research and enhancement permits for reasons not related to 
enforcement actions.
    Sec.  216.41 Permits for scientific research and enhancement: 
Should NMFS attempt to streamline, clarify and consolidate this large 
section with existing general permitting requirements? If so, any 
specific language toward that end would be considered. One change we 
are considering is the requirements for public display of marine 
mammals held under a scientific research permit in Sec.  
216.41(c)(1)(vi)(A) such that marine mammals may be on display if 
necessary to address the research objectives or if authorized by the 
Office Director, in addition to the existing requirements in Sec.  
216.41(c)(1)(vi)(B) and (C). We would appreciate any comments on if 
this should be changed. We are also considering adding a new section, 
Sec.  216.41(c)(3), to authorize via an enhancement permit the long-
term captive maintenance and incidental public display of ESA-listed 
species originally obtained under a research or enhancement permit when 
such activities have been completed or are not able to be carried out 
and the animals cannot be returned to the wild. Such permits would 
require that an appropriate educational program is established and 
approved by Office Director and that the animals are made available for 
research or enhancement activities at the request of the Office 
Director. In addition, if we implemented the General Authorization 
changes (see Sec.  216.45), then those changes would also apply to this 
section for non-strategic marine mammals.
    Sec.  216.42 Photography [Reserved]: NMFS may propose regulations 
similar to those for the General Authorization (Sec.  216.45). We are 
also considering limiting the number of personnel that may be involved 
in order to eliminate potential problems with permit holders using such 
authorization for ecotourism, since the MMPA does not provide 
exemptions for harassment of marine mammals via ecotourism permits. Any 
specific recommendations as to what these regulations should or should 
not include would be considered.
    Sec.  216.45 General Authorization for Level B harassment for 
scientific research: NMFS is considering modifications to this section 
that would make General Authorizations (GAs) available based on the 
status of the target stock, rather than strictly based on the level of 
harassment. The recommended change would make a GA available for all 
Level A and Level B research on all non-strategic stocks of MMPA 
species. A GA would also be available for stocks defined as strategic 
under the MMPA, but only for Level B research activities. Under this 
suggested change a GA would not be appropriate for Level A research on 
ESA listed species, or depleted and strategic stocks under the MMPA. A 
number of paragraphs throughout this section would have to change as a 
result of this recommendation. This change, prior to implementation, 
would require a similar change in section 104(c)(3)(C) of the MMPA.
    Regardless of whether changes are made to allow the GA to apply to 
level A harassment, NMFS proposes to modify this section to clarify 
that the description of methods in the letter of intent must specify 
the number of marine mammals, by species or stock, that would be taken, 
including a justification for such sample sizes.
    NMFS is also considering revising the terms and conditions of the 
GA regulations to clarify that any activity conducted incidental to the 
research, such as commercial or educational filming or photography, 
would require prior written approval from NMFS, and such activities 
would be subject to the same conditions as those specified at Sec.  
216.41(c)(1)(vii) for scientific research and enhancement permits, 
i.e., the conduct of such incidental activities must not involve any 
taking of marine mammals beyond what is necessary to conduct the 
research.
    Other considerations: NMFS is also considering adding new sections 
to the regulations. One such consideration would place the permit 
application and amendment process on a cycle. One option would be to 
accept permit applications and amendment requests quarterly (i.e., 
during any one of four three-month cycles per year). Applicants would 
have firmly established deadlines (made known through FR notification, 
mailings, and web site) to assist them in planning the submission of 
their application relative to the proposed start of their research. 
Another option would be to accept applications and amendments only 
twice a year, during one of two six-month cycles
    One possible disadvantage for applicants under either alternative 
is that if a submission deadline were missed an applicant would have to 
wait three (option 1) to six (option 2) additional months for their 
permit. Applicants are used to requesting amendments at any time. They 
too would be affected by this modification and a request for an 
amendment could only happen once a permit cycle. However, a permit 
cycle ultimately makes receipt of permits predictable and helps 
researchers plan the submission of their applications with respect to 
proposed initiation of their work.
    For applications to conduct research on non-ESA listed species, 
NMFS would aim for an average processing time of 90 days such that 
processing an application submitted by the deadline for one cycle could 
be completed by the end of the next cycle (three months later). Another 
advantage to this is that the average processing time of applications 
involving ESA-listed marine mammal species would likely be reduced 
because we would be able to conduct batched consultations and analyses 
under the ESA and NEPA. In cases where programmatic NEPA documents and 
corresponding ESA section 7 consultations have been completed, an 
average processing time of 90 to 120 days could be possible for those 
research activities covered by the documents.

Public Involvement

    NMFS invites the public to submit comments on the current 
regulations, recommended changes to the current regulations that might 
be considered in a new set of proposed regulations, and any relevant 
issues pertaining to the permitting process that might be considered as 
part of future proposed

[[Page 52343]]

rulemaking. Be as specific as possible including providing draft 
language if appropriate. NMFS does not intend to convene public 
meetings under this ANPR. Comments and recommendations received under 
this ANPR will be reviewed as part of a proposed rulemaking which will 
be the next step in this regulatory process.

    Dated: September 7, 2007.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E7-18106 Filed 9-12-07; 8:45 am]
BILLING CODE 3510-22-S