[Federal Register Volume 73, Number 21 (Thursday, January 31, 2008)]
[Proposed Rules]
[Pages 5786-5788]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1666]



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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 071105649-8028-01]
RIN 0648-AW22


Marine Mammals: Advanced Notice of Proposed Rulemaking

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

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

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SUMMARY: NMFS is considering proposing changes to its implementing 
regulations governing the taking of stranded marine mammals under 
section 109(h), section 112(c), and Title IV of the Marine Mammal 
Protection Act (MMPA), and is soliciting public comment to better 
inform the process. The taking of stranded marine mammals and release 
of rehabilitated marine mammals to the wild is governed by the MMPA and 
NMFS implementing regulations. NMFS intends to clarify requirements and 
procedures for responding to stranded marine mammals and for 
determining the disposition of rehabilitated marine mammals, which 
includes procedures for the placement of non-releasable animals and for 
authorizing the retention of releasable rehabilitated marine mammals 
for scientific research, enhancement, or public display. Any other 
recommendations received in response to this Advanced Notice of 
Proposed Rulemaking (ANPR) (see DATES and ADDRESSES) 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 March 31, 2008.

ADDRESSES: You may submit comments, identified by ``RIN 0648-AW22,'' by 
any one of the following methods:
     Electronic Submissions: Submit all electronic public 
comments via the Federal eRulemaking Portal http://www.regulations.gov;
     Fax: (301) 427-2525, Attn: Stranding Regulations ANPR
     Mail: Chief, Marine Mammal and Sea Turtle Division, Attn: 
Stranding Regulations ANPR, Office of Protected Resources, NMFS, 1315 
East-West Highway, Room 13635,
    Silver Spring, MD 20910.
    Instructions: All comments received are a part of the public record 
and will generally be posted to http://www.regulations.gov without 
change. All Personal Identifying Information (for example, name, 
address, etc.) voluntarily submitted by the commenter may be publicly 
accessible. Do not submit Confidential Business Information or 
otherwise sensitive or protected information.
    NMFS will accept anonymous comments. Attachments to electronic 
comments will be accepted in Microsoft Word, Excel, WordPerfect, or 
Adobe PDF file formats only.

FOR FURTHER INFORMATION CONTACT: Sarah Howlett, Fishery Biologist, 
Office of Protected Resources, NMFS, at (301) 713-2322, ext. 202.

SUPPLEMENTARY INFORMATION: NMFS has the authority, delegated from the 
Secretary of Commerce, to take stranded marine mammals under section 
109(h) of the MMPA (16 U.S.C. 1379) and to establish and manage the 
Marine Mammal Health and Stranding Response Program (MMHSRP) under 
Title IV of the MMPA (16 U.S.C. 1421 et seq.). Title IV of the MMPA 
charges the Secretary of Commerce to develop and maintain a marine 
mammal health and stranding response program with three goals: (1) 
Facilitate the collection and dissemination of reference data on the 
health of marine mammals and health trends of marine mammal populations 
in the wild; (2) correlate the health of marine mammals and marine 
mammal populations, in the wild, with available data on physical, 
chemical, and biological environmental parameters; and (3) coordinate 
effective responses to unusual mortality events by establishing a 
process in the Department of Commerce in accordance with section 404 of 
the MMPA.
    Under the MMHSRP, NMFS has the authority to: enter into agreements 
with persons to take marine mammals in response to a stranding (in 
accordance with section 112(c) of the MMPA); collect information on 
procedures and practices for rescue and rehabilitation of stranded 
marine mammals; develop criteria and provide guidance for determining 
the releasability of a rehabilitated marine mammal to the wild; and 
collect information on strandings, life history, and reference level 
data. The National Marine Mammal Stranding Network (Network) is a major 
component of the MMHSRP. The Network consists of organizations 
nationwide that respond to stranded cetaceans and pinnipeds (except 
walrus) on land and within U.S. waters. These organizations are 
authorized through Stranding Agreements issued by NMFS under section 
112(c) of the MMPA or through section 109(h), which authorizes Federal, 
state, and local government employees to take marine mammals in the 
course of their official duties. Organizations involved in the Network 
include academic institutions, museums, government agencies, Native 
American tribes and Alaska Native communities, non-profit and for-
profit organizations, and individuals.
    The regulations in 50 CFR 216.22 implement MMPA sections 
109(h)(1)(A) and (B); and 109(h)(3) (16 U.S.C. 1379- Federal 
Cooperation With States) and were last updated in 1991. NMFS is 
considering updating Sec.  216.22 to be consistent with the 1994 
Amendments to the MMPA, and broadening the scope to include other 
authorized activities including: MMPA sections 109(h)(1)(C) and 
109(h)(2) (16 U.S.C. 1379); section 112(c) (16 U.S.C. 1382- Regulations 
and Administration); section 403 (16 U.S.C. 1421b--Stranding Response 
Agreements), and possibly other aspects of Title IV--Marine Mammal 
Health and Stranding Response, of the MMPA (16 U.S.C. 1421). The 
regulations in 50 CFR 216.27 implement MMPA section 402(a) (16 U.S.C. 
1421a--Determination; Data Collection and Dissemination) and were last 
updated in 1996. NMFS is considering updating Sec.  216.27 to clarify 
procedures and requirements for: rehabilitated marine mammal release 
determinations, which are defined in the draft Policies and Best 
Practices for Marine Mammal Stranding Response, Rehabilitation, and 
Release (Policies and Best Practices), disposition of non-releasable 
animals; data and sample collection; euthanasia of stranded marine 
mammals; and public viewing of marine mammals in rehabilitation.
     The MMHSRP is currently undergoing a programmatic National 
Environmental Policy Act review, which includes the finalization and 
issuance of the Policies and Best Practices. The notice of availability 
for the Draft Programmatic Environmental Impact Statement (PEIS) was 
published in the Federal Register on March 16, 2007 (72 FR 12610). The 
Draft PEIS, Policies and Best Practices, and other supporting documents 
are available on the MMHSRP website: http://www.nmfs.noaa.gov/pr/health/eis.htm. The Final PEIS is anticipated in early 2008.
    The following paragraphs contain potential regulatory changes being 
considered by NMFS. The regulatory sections under consideration can be 
found at 50 CFR 216.3, 216.22, 216.26, and 216.27. The specific parts 
and subparts are identified below and are either followed by 
recommendations

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from NMFS on possible alternatives or changes to the current language, 
or a general solicitation by NMFS for public comments pertaining to 
that section.
    In Sec.  216.3, a number of new terms have been introduced into the 
implementing guidelines, protocols, and policies, and terms may 
currently be used differently than when they were first defined. New 
definitions may need to be included or current definitions may need to 
be revised in order to reflect these changes. For example, the 
definition of a ``stranded marine mammal'' may be clarified or 
expanded. Are there existing definitions relevant to marine mammal 
strandings that need clarification or expansion? Are there any new 
definitions pertaining to stranded marine mammals that need to be added 
to these regulations?
    In Sec.  216.22 (a), we are considering expanding this paragraph to 
include all persons authorized to respond to stranded marine mammals, 
including Federal, state, and local government employees (government 
employees) (MMPA section 109(h)(1)) and any non-governmental persons 
designated under MMPA section 112(c). Should regulations for government 
employees and 112(c) designated responders be combined in the same 
section or in separate sections? Should all stranding responders, 
regardless of whether they are a government employee or a designated 
responder (authorized by a Stranding Agreement), be required to follow 
the same procedures for taking stranded marine mammals, including 
following the same animal handling and treatment, data collection, and 
reporting requirements? If so, should these regulations provide 
specific policies or procedures that government employees must follow 
and specify what these government stranding responders operating under 
section 109(h) of the MMPA should and should not do, similar to those 
established in Stranding Agreements for responders designated under 
MMPA section 112(c)?
    NMFS may also clarify that ``taking'' includes euthanasia, as 
specified in MMPA section 109(h)(1), and add paragraph Sec.  
216.22(a)(4) to further address euthanasia. NMFS proposes to list 
acceptable humane methods of euthanasia in the regulations, as defined 
in the draft Policies and Best Practices. Should euthanasia methods be 
part of NMFS policy and referred to in regulations or should they be 
specifically included in regulations? Should NMFS add criteria 
regarding qualifications necessary to obtain authorization to perform 
euthanasia of a stranded marine mammal and criteria for the use of 
firearms to accomplish euthanasia? Any recommendations on the subject 
of euthanasia will be considered.
    In Sec.  216.22(a)(3), NMFS is planning to publish the minimum 
requirements for stranding responders, defined in the Policies and Best 
Practices, including: (1) criteria for receiving designation under MMPA 
section 112(c); (2) criteria for maintaining good standing under 
section 112(c) designation; (3) standards for maintaining marine 
mammals in rehabilitation; (4) data collection required under MMPA 
sections 402(b)(3) (stranding information by NMFS region), 402(b)(4) 
(other life history and reference level data), and 402(c) (availability 
of collected stranding data and information); and (5) carcass disposal 
(acceptable methods and protocols; Federal, state, and local 
environmental laws and jurisdiction; private land owner considerations, 
etc.). NMFS may also add provisions for taking and transporting samples 
from live stranded animals for diagnostic analysis and/or archiving, 
and criteria and procedures for revoking MMPA section 112(c) 
agreements.
    In Sec.  216.22(b), NMFS may also change the reporting requirements 
(i.e., information required and frequency of reporting) for government 
officials and employees to be the same as the reporting requirements 
for stranding network participants designated under MMPA section 
112(c). Section 112(c) agreement holders are required to submit Level A 
data within 30 days of a stranding event per their Stranding Agreement; 
NMFS proposes to include this as a regulatory requirement. Level A data 
includes, but is not limited to, location information, animal 
disposition, morphological data, whether or not the animal was 
necropsied, and carcass/specimen disposition. The complete required 
Level A data can be found on the following website: http://www.nmfs.noaa.gov/pr/pdfs/health/levela.pdf. Given the increased number 
of disease outbreaks observed in marine mammals that have population 
level effects and the potential for transmission of diseases from 
marine mammals to humans, NMFS is proposing to incorporate language in 
this paragraph to require disease reporting or sample submission for 
specific diseases from all stranding responders (those designated under 
MMPA sections 109(h) and 112(c)).
    In Sec.  216.22 (c), NMFS is considering deleting the word 
``salvage'' and utilizing a term relevant to taking samples from both 
live and dead stranded animals.
    In Sec.  216.22(c)(1), NMFS is considering expanding the purposes 
of sample collection to include diagnostic purposes, in addition to 
research, curation, and educational purposes.
    In Sec.  216.22(c)(2), NMFS intends to expand the scope of this 
paragraph to include live animals and modify reporting requirements, 
including Level A data collection and submission. Is the 30-day 
reporting requirement and information required adequate? Should special 
reporting provisions for die-off or disease outbreak events be 
required?
    In Sec.  216.22(c)(3), NMFS recognizes a significant need for a 
standard method of identifying an animal so that each animal is 
recorded only once (to avoid ``double-counting'') and so that NMFS can 
ensure that parts and samples will be traced back to the original 
stranding (or other legal take) for scientific, diagnostic, and 
management purposes. NMFS intends to develop a specific numbering 
system that allows responders to assign a unique number in the field 
which would be used in the Marine Mammal National Database. This 
numbering system would not replace organizational/institutional 
numbering systems, but may require responders to add a field to their 
databases.
    In Sec.  216.22(c)(4), Is it acceptable, for example, to use marine 
mammal tissues in research to develop a commercial vaccine that can be 
sold, where the vaccine itself is not composed in part or whole of any 
marine mammal? NMFS intends to clarify the language regarding 
reimbursement from recipients for services and transportation costs 
associated with transferring stranded animal samples or parts.
    In Sec.  216.22(c)(5), NMFS is considering combining regulations 
governing the transfer of parts taken under this paragraph with Sec.  
216.37 Marine Mammal Parts (May 10, 1996; 61 FR 21937) and having one 
section of the regulations covering transfers of any marine mammal part 
legally taken (during scientific research, subsistence harvest, 
stranding, etc.). NMFS is also considering establishing criteria under 
which cell cultures and cell lines of tissues collected from stranded 
marine mammals may be developed, used, or transferred for research, 
diagnostic, treatment, or archival purposes.
    In Sec.  216.22(c)(7), NMFS is proposing to include a provision for 
allowing Regional Administrators and Office Directors, as well as the 
Assistant Administrator, to authorize export and re-import of stranded 
animal parts for diagnostic testing, research, education, and 
curatorial purposes under these regulations, and combine this paragraph

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with parts transfer procedures under Sec.  216.37.
    Sec.  216.22(c)(8), Are there any other exceptions that should be 
considered (e.g., transferring carcasses for necropsy training 
workshops)?
    Sec.  216.26, NMFS intends to clarify the scope and procedures 
within this paragraph, including whether they apply to ESA-listed 
species and/or how to properly manage parts from endangered species 
under these circumstances. Should NMFS consolidate Sec.  216.26 with 
other parts sections to simplify the information and procedures? Is 
there any other clarification required in this section, such as whether 
this section would be applicable to a hard part with soft tissue still 
attached?
    In Sec.  216.27, in paragraph (a) Release requirements, NMFS 
intends to publish regulatory requirements and/or standards for 
releasing rehabilitated marine mammals to the wild based on the draft 
Policies and Best Practices. Do any of the administrative procedures 
need to be clarified or modified, and if so, in what way? NMFS proposes 
these regulatory requirements to include a standardized health 
certificate for rehabilitated marine mammals to be completed prior to 
their release to the wild and retention of these records. What are the 
necessary components of this health certificate and the appropriate 
retention time for records?
    In Sec.  216.27(b), NMFS may clarify the procedures for making a 
non-releasable or postponed release determination and provide further 
guidance on procedures in paragraphs (b)(3)(i) and (ii) regarding 
making a request to retain or transfer custody of a non-releasable 
marine mammal, and when euthanasia is appropriate. Any comments on 
these sections would be appreciated.
    In Sec.  216.27(c), NMFS may develop a standardized method for 
making disposition decisions, including procedures for the placement of 
non-releasable animals for public display, research, or enhancement 
purposes and for informing facilities of the availability of non-
releasable marine mammals. How should facilities be notified of the 
availability of non-releasable animals? How should NMFS determine the 
placement of marine mammals? This would include decisions on which 
facility receives the animal and what purpose the animal would be used 
for (scientific research or public display). Should NMFS have standard 
criteria to use to determine where to place an animal (e.g., pool size, 
availability of suitable conspecifics, distance of transport, etc.)? 
How much flexibility is necessary for these criteria? NMFS may clarify 
this paragraph to state that a special exemption permit is required to 
retain a stranded marine mammal that was determined to be releasable to 
the wild following rehabilitation for scientific research, enhancement, 
or public display. Any recommendations on how these processes should be 
implemented and what concerns there are associated with disposition 
determinations would be appreciated.
    In Sec.  216.27(c)(5), Should marine mammals undergoing 
rehabilitation or pending disposition determination be subject to 
public viewing? If not, provide justification. If so, under what 
circumstances and why? And, if so, does NMFS need to clarify the 
definition of public viewing for animals undergoing rehabilitation to 
differentiate this from permanently captive animals on public display? 
Would public viewing of rehabilitating marine mammals have an effect on 
their chances for survival post-release? NMFS understands the 
significant public interest in animals undergoing rehabilitation, 
however public access to sick or injured animals does carry some risks 
to the animals and public health. NMFS proposes to provide guidelines 
or regulations on public access to marine mammals undergoing 
rehabilitation. What should NMFS include in these guidelines or 
regulations and how should they be implemented?
    In Sec.  216.27(c)(6), Does NMFS need to further define or clarify 
what activities would qualify as intrusive research on a marine mammal 
undergoing rehabilitation, based on the definition in Sec.  216.3, or 
qualify the procedures for making this determination for animals 
undergoing rehabilitation? Should NMFS require Institutional Animal 
Care and Use Committee (IACUC) review before intrusive research occurs 
on animals in rehabilitation?

Public Involvement

    NMFS invites the public to submit written comments (see DATES and 
ADDRESSES) on the current regulations, recommended changes to the 
current regulations and any relevant issues pertaining to stranding 
response activities for consideration during the future proposed 
rulemaking. Be as specific as possible when providing draft language. 
NMFS does not intend to convene public meetings associated with this 
ANPR. Comments and recommendations received in response to this ANPR 
will be reviewed as part of a proposed rulemaking, which may be the 
next step in this regulatory process.

    Dated: January 24, 2008.
Samuel D. Rauch III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.
[FR Doc. E8-1666 Filed 1-30-08; 8:45 am]
BILLING CODE 3510-22-S