[Federal Register Volume 75, Number 46 (Wednesday, March 10, 2010)]
[Notices]
[Pages 11130-11131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5142]


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

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XU93


Notice of Intent to Prepare an Environmental Assessment for a 
Proposed Rule to Revise Marine Mammal Special Exception Permit 
Requirements

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

ACTION:  Notice of Intent to prepare environmental assessment.

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

SUMMARY:  The National Marine Fisheries Service (NMFS) announces its 
intent to prepare an Environmental Assessment (EA) to analyze the 
potential environmental impacts of a proposed rule to revise Federal 
regulations implementing the Section 104 permit provisions of the 
Marine Mammal Protection Act (MMPA; 16 U.S.C. 1361 et seq.). NMFS 
proposes changes to the regulations to clarify existing permitting 
procedures and to codify procedures currently being implemented through 
agency policy. By this notice, NMFS requests public participation in 
the scoping process that will help identify alternatives and determine 
the scope of environmental issues to be addressed in the EA. This 
notice also provides information on how to participate in the scoping 
process.

ADDRESSES:  Written comments must be postmarked by May 10, 2010, and 
should be mailed to: P. Michael Payne, Chief, Permits, Conservation and 
Education Division, Office of Protected Resources, National Marine 
Fisheries Service, 1315 East-West Highway, Room 13705, Silver Spring, 
MD 20910-3226. Comments may also be submitted by facsimile to (301)713-
0376, or by email to [email protected]. Please include 
``Permit Regulations NOI'' in the subject line of the email. The 
facsimile must be confirmed by hard copy submitted by mail and 
postmarked no later than the closing date of the comment period.

FOR FURTHER INFORMATION CONTACT:  Amy Sloan or Jennifer Skidmore, 
(301)713-2289.

SUPPLEMENTARY INFORMATION: NMFS is the Federal agency responsible for 
management of cetaceans and pinnipeds, except walrus. NMFS Office of 
Protected Resources administers a program that issues permits to 
various individuals and institutions to take marine mammals in lands 
and waters under U.S. jurisdiction, and to U.S. citizens operating in 
international waters. These permits are issued pursuant to the 
provisions of the MMPA and NMFS regulations governing the taking and 
importing of marine mammals (50 CFR part 216), and in accordance with 
agency policy. For threatened and endangered marine mammal species, 
permits are also governed by the requirements of the Endangered Species 
Act (ESA; 16 U.S.C. 1531 et seq.) and the regulations governing the 
taking, importing, and exporting of endangered and threatened species 
(50 CFR 222-226).
    Permits provide an exemption to the statutory take prohibitions to 
facilitate bona fide scientific research or enhance the survival and 
propagation of marine mammals, and to allow for import, public display, 
and commercial and educational photography of marine mammals as 
provided for in the MMPA. The MMPA and the ESA prohibit ''takes'' of 
marine mammals, and threatened and endangered species, respectively. 
Under the MMPA, ''take'' is defined as to ''harass, hunt, capture, 
collect or kill, or attempt to harass, hunt, capture, collect or kill 
any marine mammal.'' The ESA defines ''take'' as ''to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to 
attempt to engage in any such conduct.'' The MMPA further defines two 
levels of harassment. Level A harassment includes actions with a 
potential to injure a marine mammal or marine mammal stock in the wild. 
Level B harassment includes actions with a potential to disturb a 
marine mammal or marine mammal stock in the wild by causing disruption 
of behavioral patterns.
    Many activities, including photography, aerial and vessel-based 
surveys, tagging and marking procedures, attachment of scientific 
instruments, and collection of tissue samples require closely 
approaching or capturing animals and may result in harassment or other 
acts prohibited under the MMPA and ESA except where allowed by permit.
    The statutory requirements for permits to allow import, public 
display, research, enhancement, and commercial and educational 
photography on marine mammals are described in Section 104 of the MMPA. 
Section 10 of the ESA describes the requirements for permits for 
scientific purposes or to enhance the propagation or survival of listed 
species. In addition to the requirements of section 10 of the ESA, NMFS 
must comply with section 7 of the ESA in issuing permits. According to 
Section 7 of the ESA, NMFS must ensure that any action it authorizes 
(such as by permit) is not likely to jeopardize the continued existence 
of listed species or result in destruction or adverse modification of 
critical habitat. Information requested of permit applicants is used to 
evaluate compliance with issuance criteria and in analyses of 
environmental impacts required under Section 7 of the ESA and by the 
National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.).
    NMFS issuance of permits is governed by the procedural requirements 
of NEPA and the Administrative Procedure Act (APA; 5 U.S.C. 551 et 
seq.). NEPA requires Federal agencies to integrate environmental values 
into their decision making process by considering the environmental 
impacts of their proposed actions, such as permit issuance, and 
reasonable alternatives to those actions. The APA governs procedures 
related to imposition of permit sanctions, and requirements for NMFS to 
maintain records related to determinations on applications.
    In 2007, NMFS published an Advance Notice of Proposed Rulemaking 
(ANPR) (72 FR 52339; Sep. 13, 2007) soliciting comments from the public 
regarding changes being considered to the NMFS permit regulations, 
including criteria for issuance of scientific research and enhancement 
permits. NMFS sought public comment to inform efforts to further 
streamline and clarify general permitting requirements, simplify 
procedures for transferring marine mammal parts for research, consider 
application of the General Authorization to research involving level A 
harassment for non-ESA listed species,

[[Page 11131]]

and develop a cycle for submission and processing of applications for 
permits.
    Some commenters indicated that the ANPR was too general to allow 
for meaningful comment. Others provided suggestions for modifications 
or expressed support for or opposition to changes proposed in the ANPR. 
Based on comments received, and an internal scoping process, NMFS has 
developed more specific proposed revisions, additions, and 
restructuring to form the basis of one or more alternatives to be 
evaluated in an EA for a Proposed Rule to revise NMFS marine mammal 
permit application procedures and permit requirements. This internal 
scoping summary document contains proposed regulatory language but does 
not represent a preferred alternative. Rather, it indicates where NMFS 
believes changes to the permit regulations are needed. The internal 
scoping summary document and comments on the ANPR are available at 
https://www.nmfs.noaa.gov/pr/permits/mmpa_regulations.htm.
    NMFS is preparing an EA to evaluate the potential environmental 
impacts of promulgating revised regulations governing permit 
application submission, review, and decision procedures including 
issuance criteria, penalties and permit sanctions, and permit 
conditions related to reporting, permit modifications, and 
restrictions. The purpose of the proposed revisions to the regulations 
is to improve their utility by clarifying, reorganizing, and updating 
the regulatory language. These improvements are needed to enhance 
readability, compliance, and enforcement.
    This notice initiates a public scoping period that will inform the 
structure of alternatives and relevant information considered in the 
EA. The number and structure of the alternatives analyzed in the EA 
will be determined based on information gathered during scoping. NMFS 
is seeking public comments on the following:
    (1) New and revised definitions. NMFS is considering a number of 
new definitions and revision of some existing definitions to clarify 
terms related to permit application submission, review, and decision 
procedures and permit terms and conditions.
    (2) Restructuring and re-ordering some sections. NMFS is 
considering consolidating some sections of Subparts B (Prohibitions), C 
(General Exceptions), and D (Special Exceptions) of the regulations, 
reordering the regulations to parallel the structure of the MMPA, and 
adding sections on the Marine Mammal Inventory, public display, and 
photography permits. For example, NMFS proposes consolidation of all 
marine mammal parts collection and transfer regulations into sections 
within subpart C, rather than the current distribution across multiple 
subparts.
    (3) Revisions and additions to application and permit requirements. 
NMFS is considering substantial revisions and additions to the sections 
specific to permits for scientific research and enhancement, commercial 
and educational photography, and public display. For example, NMFS 
proposes insertions describing permit requirements for educational and 
commercial photography, which do not have specific regulations and are 
currently processed according to regulations for scientific research 
and enhancement.
    (4) Factors to consider in evaluating significance of impacts. NMFS 
seeks comment from persons affected by or otherwise interested in the 
marine mammal permitting process related to how proposed regulatory 
changes may affect marine mammals and their environment, as well as on 
potential impacts on the regulated public.
    NMFS will consider all comments received during the comment period. 
All hardcopy submissions must be unbound, on paper no larger than 8 1/2 
by 11 inches (216 by 279 mm), and suitable for copying and electronic 
scanning. NMFS requests that you include in your comments: (1) Your 
name and address; and (2) Any background documents to support your 
comments, as you feel necessary. A draft EA will be made available for 
public review concurrent with publication of a notice of proposed 
rulemaking.

    Dated: March 4, 2010.
P. Michael Payne,
Chief, Permits, Conservation and Education Division, Office of 
Protected Resources, National Marine Fisheries Service.
[FR Doc. 2010-5142 Filed 3-9-10; 8:45 am]
BILLING CODE 3510-22-S