2024-23035. Issuance of a General Permit for Ocean Disposal of Marine Mammal and Sea Turtle Carcasses

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Environmental Protection Agency

1. [EPA-HQ-OW-2023-0329; FRL-10681-01-OW]

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability of proposed general permit.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to re-issue a general permit under the Marine Protection, Research and Sanctuaries Act (MPRSA) to authorize the transport of marine mammal and sea turtle carcasses from the United States and disposal of marine mammal and sea turtle carcasses in ocean waters. Permit authorization is available for any officer, employee, agent, department, agency, or instrumentality of Tribal, Federal, state, or local unit of government, as well as any Marine Life Health and Stranding Response Program (MLHSRP) Stranding Agreement Holder, and any Alaska Native, who already may take a marine mammal or sea turtle under the Endangered Species Act (ESA) and/or Marine Mammal Protection Act (MMPA). In 2017, the EPA issued a general permit for the ocean disposal of marine mammal carcasses to streamline MPRSA authorization and reduce burdens associated with case-by-case permitting. Permit re-issuance is necessary because the most recent permit expired on January 4, 2024. The EPA is not proposing substantive changes to the content of the recently expired general permit. The EPA invites public comment on all aspects of this proposed general permit.

DATES:

Comments on this proposed general permit will be accepted until December 9, 2024.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OW-2023-0329, by any of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov /(our preferred method). Follow the online instructions for submitting comments.
• Mail: U.S. Environmental Protection Agency, EPA Docket Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.
• Hand Delivery or Courier: EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays).

Instructions: All submissions received must include the Docket ID No. for this proposed general permit. Comments received may be posted without change to https://www.regulations.gov/​, including any personal information provided. For detailed instructions on sending comments, see the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Cheryl Zulick, Freshwater and Marine Regulatory Branch; Oceans, Wetlands, and Communities Division, Mail Code 4504T, Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone [phone]; email address: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Written Comments

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2023-0329, at https://www.regulations.gov. Once submitted, comments cannot be edited or removed from the docket. The Environmental Protection Agency (EPA) may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/​dockets/​commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

I. General Information

A. Does this action apply to me?

The authorization proposed in this general permit is available for any officer, employee, agent, department, agency, or instrumentality of Tribal, Federal, state or local unit of government, as well as any Marine Life Health and Stranding Response Program (MLHSRP), including any Stranding Agreement Holder, and any Alaska Native, who already may take a marine mammal under the Endangered Species Act (ESA) or Marine Mammal Protection Act (MMPA), to transport from the United States and dispose of a marine mammal or sea turtle carcass in ocean waters.

B. Does this action require the disposal of marine mammal or sea turtle carcasses in ocean waters?

The proposed general permit does not require ocean disposal of marine mammal or sea turtle carcasses; it merely authorizes ocean disposal when there is a need for such disposals.

C. Why does the EPA permit ocean disposal of marine mammal and sea turtle carcasses?

Unless expressly excluded from the Marine Protection, Research, and ( print page 81520) Sanctuaries Act (MPRSA), the transportation and disposition of any material in ocean waters, including marine mammal and sea turtle carcasses, requires a permit under the MPRSA.

D. Why does this action require reporting?

Given the natural occurrence of marine mammal and sea turtle carcasses in the marine environment, the disposal of marine mammal or sea turtle carcasses into the ocean is not anticipated to have any adverse effect on human health, fisheries resources, or marine ecosystems. Under the MPRSA regulations (40 CFR 224.1 through 224.2), each person dumping materials under a general permit must maintain records of the physical and chemical characteristics of the material dumped, the times and locations of the dumping, and any other information required as a condition of the permit. Those records must be reported to the EPA as required under the general permit. Additionally, to meet the United States' international treaty obligation for reporting under the London Convention, the EPA reports information about disposals under this general permit, and all other activities authorized by the MPRSA, annually to the International Maritime Organization.

II. Federal Law and International Conventions

Unless expressly excluded from the MPRSA, the transportation for the purpose of dumping and dumping of any material in ocean waters requires authorization under the MPRSA. The MPRSA uses the term “dumping,” and that term is defined broadly to encompass the disposition of material both for the purpose of disposal, including the disposal of marine mammal or sea turtle carcasses at sea, and for purposes other than disposal.

In the United States, the MPRSA implements the requirements of the London Convention, the international treaty that protects the marine environment from the dumping of wastes and other matter into the ocean. Contracting Parties to the London Convention agreed to control dumping by implementing regulatory programs to assess the need for, and the potential impact of, dumping. The London Convention requires that Contracting Parties issue a permit for the dumping of wastes and other matter at sea and report, annually, on all permits issued and monitoring activities undertaken. Under the MPRSA, the EPA establishes general terms of authorization for the ocean disposal of marine mammal and sea turtle carcasses, but other Federal laws are implicated.

The Marine Mammal Protection Act (MMPA), which is relevant for the purposes of this permit, as explained later, regulates “marine mammals” meaning any mammal that is morphologically adapted to the marine environment (including sea otters and members of the orders Sirenia, Pinnipedia, and Cetacea) or primarily inhabits the marine environment ( e.g., polar bears). The Marine Turtle Conservation Act defines a sea turtle using the term “marine turtle”, which means any member of the family Cheloniidae or Dermochelyidae. Other than for Alaska Natives with disposal needs when engaged in subsistence uses recognized by the MMPA, the EPA does not anticipate that ocean disposal will be necessary for marine mammal or sea turtle carcasses except in unusual circumstances, such as but not limited to, beached and floating marine mammal or sea turtle carcasses and mass strandings of marine mammals or sea turtles resulting in mortalities. In those unusual circumstances, ocean disposal may be necessary to protect human health, for example, when other disposal options are not available.

Before 2017, the EPA permitted the ocean disposal of cetacean (whales and related species) and pinniped (seals and related species) carcasses on a case-by-case basis, with emergency permits. The EPA issued a general permit for the ocean disposal of marine mammal carcasses, which became effective in January 2017, to streamline MPRSA authorization and reduce burdens associated with case-by-case permitting. That general permit provided authorization from January 5, 2017, through January 4, 2024. Under the MPRSA, general permits may be issued for a period no longer than seven years. By issuing the proposed general permit, the general permit's authorization to transport marine mammal and sea turtle carcasses for the purpose of disposal and to dispose marine mammal and sea turtle carcasses in ocean waters would be issued for another seven-year period. Since January 5, 2017, when the first general permit for the ocean disposal of marine mammal carcasses became effective, the EPA has authorized 32 marine mammal carcass disposals in ocean waters under the general permit and an additional 43 marine mammal carcass disposals using emergency permits. The proposed permit would avoid the need for future emergency permitting for marine mammal or sea turtle carcasses.

Federal laws providing protection and conservation of marine mammals and sea turtles include the MMPA, the ESA, the Marine Turtle Conservation Act, the Whaling Convention Act (WCA), the Fur Seal Act, and international conventions, including the Inter-American Convention for the Protection and Conservation of Sea Turtles, the International Convention for the Regulation of Whaling, which established the International Whaling Commission (IWC), and the Convention on International Trade in Endangered Species of Wild Fauna and Flora. Although this proposed general permit applies only to marine mammal or sea turtle carcasses, certain international regulations are relevant. The United States is a party to the IWC and IWC regulations are self-implementing. IWC regulations recognize indigenous or aboriginal subsistence whaling. As relevant to subsistence whaling in the United States, the IWC sets catch limits for the Western Arctic stock of bowhead whales based upon the needs of subsistence fishing in Alaska villages. The hunt is managed cooperatively by the National Marine Fisheries Service (NMFS) and the Alaska Eskimo Whaling Commission under the WCA and the MMPA. As such, any Alaska Native, who already may take a marine mammal under the MMPA and the ESA, are provided authority under this proposed general permit should marine mammal carcasses need to be transported and disposed at sea.

The other relevant Federal program under the MMPA and the ESA is implemented by NMFS. MLHSRP Stranding Agreement Holders are provided authority under this proposed general permit because Stranding Agreement Holders are authorized to take marine mammals subject to the provisions of the MMPA (16 U.S.C. 1361 et seq.) and the Fur Seal Act of 1966, as amended (16 U.S.C. 1151 et seq.). MLHSRP Stranding Agreement Holders are provided authority under this proposed general permit because Stranding Agreement Holders also are authorized to take sea turtles subject to the provisions of the ESA (16 U.S.C. 1531 et seq.) and the implementing regulations governing the taking, importing, and exporting of endangered and threatened marine species and designated critical habitat (50 CFR parts 222 through 226). As such, MLHSRP Stranding Agreement Holders may have a need for ocean disposal should stranded marine mammals or sea turtles die.

III. Hazard to Public Safety and Navigation

A floating carcass near shore ( e.g., in a harbor) may pose a risk to public ( print page 81521) safety before making land fall to the extent it might attract predators ( e.g., sharks) to a recreation area in nearby waters or pose a hazard to navigation. Per regulations promulgated by the U.S. Army Corps of Engineers (USACE), at 33 CFR 245.20, the determination of a navigation hazard is made jointly by the USACE and the U.S. Coast Guard (USCG). If such a determination is made, the USACE determines appropriate remedial action as described in USACE regulations at 33 CFR 245.25, which may include removal of the carcass(es). MPRSA authorization to transport the carcass for the purpose of ocean disposal would be available through this proposed general permit if the navigation hazard removal operation requires ocean disposal of such carcasses.

IV. Strandings and Beachings

Marine mammals or sea turtles that have died or have become sick or injured can reach the ocean shoreline by a variety of mechanisms. Possible mechanisms include: beaching, which involves a marine mammal or sea turtle carcass being driven ashore by currents or winds; stranding (single or multiple) of live marine mammal(s) or sea turtle(s) that subsequently die; and transport on the bow of vessels. In most stranding cases, the causes of marine mammal and sea turtle strandings are unknown, but some causes may include the following: disease, parasite infestation, harmful algal blooms, injuries due to ship strikes, fishery entanglements, pollution exposure, unusual weather or oceanographic events, trauma, and starvation. While many marine mammals and sea turtles die every year, most carcasses never reach the shore; rather, the carcasses are consumed by other organisms or decompose sufficiently to sink to the ocean bottom where, depending upon size, the carcass may form the basis of an “organic fall” ( e.g., kelp, wood, and whale falls) ecosystem.

Stranding or beaching of marine mammals, sea turtles and/or marine mammal or sea turtle carcasses may pose a risk to public health due to the potential to transfer communicable diseases ( e.g., brucellosis, poxvirus, and mycobacteriosis) to the public. Marine carcasses present a significant disposal concern not only because of their size but also due to the frequency with which carcasses reach the shoreline. From 2006-2021, an average of 6,300 marine mammals stranded on United States shorelines per year (NMFS, 2024). A large majority of marine mammals that strand are either dead or die shortly after stranding (NMFS, 2022).

V. Disposal and Management Options

Generally, MLHSRP Stranding Agreement Holders are authorized to respond to marine mammals and sea turtles that are found floating near shore or beached, stranded along the shore. While Stranding Agreement Holders do not and cannot respond to every stranded marine mammal and sea turtle, when they do respond and deem disposal necessary, the carcass must be disposed of properly. The MLHSRP has prepared a programmatic Environmental Impact Statement that describes, among other things, disposal and management options for carcasses of deceased marine mammals and sea turtles.

For a dead marine mammal or sea turtle encountered, generally available methods for carcass disposal and management fall into two main categories: remove-from-the-environment and remain-in-the-environment. Remove-from-the-environment methods entail moving the carcass for disposal through controlled means and include disposing of a carcass in a landfill, and incinerating, rendering, or composting the carcass. Remain-in-the-environment methods involve leaving the marine mammal or sea turtle carcass in the environment to decompose naturally and include the following: allowing the carcass to remain and decompose in place; burying the carcass in place; and transporting the carcass to sea for ocean disposal. No one method is recommended for every carcass, and several factors are necessarily considered to determine the best disposal method for each carcass. Selection of a disposal method depends on factors such as number and size of the animal(s), carcass condition, the location, if chemicals were administered (including as antibiotics, sedatives and/or chemical euthanasia agents), availability of local resources, and logistics. Location considerations include coastal geography, currents, proximity to areas used extensively by the public, and Tribal, Federal, state, and/or local laws and regulations. While other disposal methods are briefly discussed in background materials associated with this general permit, the proposed general permit only concerns the disposal method to tow or otherwise transport marine mammal or sea turtle carcass(es) to sea for ocean disposal.

A. Remove-From-the-Environment Methods

One benefit of removing the carcass from the environment is minimizing the likelihood of infectious disease transmission to humans, domesticated animals, and wildlife. These methods either sequester the carcass or destroy the carcass and any associated pathogens and should be considered if the animal is suspected to have died from a disease that can easily spread to human or other animal populations. Remove-from-the-environment approaches can also be beneficial if the carcass contains toxic chemicals, such as certain chemical euthanasia agents ( e.g., pentobarbital). Some of these methods effectively remove these substances from the environment.

1. Disposal in a Licensed Landfill

The most widespread remove-from-the-environment method is disposal in a landfill. With this method, the carcass is removed from the beaching or stranding location and brought to a nearby landfill in a lined or contained transport vehicle. Disposal in a licensed landfill can minimize the impact of releasing any toxic substances contained in the carcass, including euthanasia drugs ( e.g., pentobarbital), because the substances can be contained to one location. However, not all licensed landfills may be able to accept animals that have been euthanized with barbiturates. Therefore, authorities would contact local landfills to ensure that the landfill can accept carcasses that contain these drugs.

2. Incineration

Incineration is the process by which carcass tissues are broken down by burning. Incineration destroys the physical integrity of a carcass and the remaining ashes and hard parts ( i.e., teeth, bones, etc.) are buried in a landfill. Disposal via incineration can prevent the spread of diseases, toxic materials, and veterinary drugs contained in the carcass from entering the environment. Disposal via the incineration method may require preplanning and consultation with the local facility to fully understand the biological load that the incineration facility can handle. Incineration can be very expensive. Incineration facilities are not commonly found in all areas of the United States and the availability of commercial or municipal incinerators may be limited by the transportability of the carcass.

3. Rendering

Rendering is an activity in which the carcass is rapidly reduced and recycled into new products. Rendering uses all parts of the animal and often creates a protein by-product ( e.g., protein meal) and a fat by-product ( e.g., tallow and grease). Disposal via rendering exposes the carcass to high heat to eliminate ( print page 81522) pathogens and prevent the spread of diseases. However, if a carcass contains euthanasia drugs some facilities may not be able to accept or process the carcasses depending on the drug. Disposal via rendering requires preplanning and consultation with the rendering facility to fully understand its policies for disposal of animals that were chemically euthanized ( e.g., pentobarbital). Rendering may be very expensive. Rendering facilities are not commonly found in all areas of the United States and the availability of rendering facilities may be limited by the transportability of the carcass.

4. Composting

Composting marine mammal or sea turtle carcasses would involve bringing a carcass to a commercial composting facility (which may or may not require a state or local operating license) or to a site designated specifically for carcass composting or composting in a carcass digester. While composting is similar to disposal in a landfill, it offers the added benefit that the nutrients contained within the carcass are transformed into biologically available material. Disposal via composting can minimize the impact of releasing any pathogens or toxic substances contained in the carcass, including euthanasia drugs (pentobarbital), because composted carcasses are contained to one location. However, if a carcass contains certain veterinary drugs some facilities may not be able to accept or process the carcasses. Disposal via composting requires preplanning and consultation with the local facility to fully understand their policies for disposal of animals that were chemically euthanized and to ensure that all carcass compost will be used in accordance with local and state regulations on wildlife compost. Composting facilities are not commonly found in all areas of the United States and the availability of composting facilities may be limited by the transportability of the carcass.

B. Remain-in-the-Environment Methods

The remain-in-environment methods of disposal involve leaving the marine mammal or sea turtle carcass to naturally break down in the same, or similar, area in which it was found. Natural decomposition (or burial) may be used for both small and large marine mammals or sea turtles and is often the most preferred method if the carcass size or remoteness of the carcass location avoids logistical issues. Remain-in-the-environment disposal methods should not be used for animals that were chemically euthanized with drugs known to cause secondary poisoning, such as pentobarbital.

1. In-Place Decomposition

Allowing a carcass to remain in place to decompose may be an acceptable disposal method if the carcass does not pose a risk for public health and animal health or result in unacceptable odor or visual aesthetic impacts. In-place decomposition may also be the most practical when the carcass is located in an area that is remote or inaccessible to heavy equipment, thereby making other options, such as burying in place or moving to a different disposal location, infeasible.

2. In-Place Burial

In-place burial of a marine mammal or sea turtle carcass involves burying the carcass in the same, or similar, location where the animal was found and may be used as a disposal method, especially when the carcass is located near population centers or near areas used for recreational activities. In-place burial involves excavating a trough above the high tide line, placing the carcass in the trench, and covering the carcass with the excavated material. Burying the carcass creates a barrier that minimizes the smell and sight of the decaying carcass and reduces the likelihood of transmitting infectious diseases and attracting scavengers. Utilizing the in-place burial disposal method also depends on other factors such as the sediment substrate in the area ( e.g., fine sediments versus rocks and boulders), the availability of appropriate excavation equipment, and potential environmental damage ( e.g., destruction of dunes, beach grass, or nesting sites) caused by the transportation and operation of excavation equipment.

3. Ocean Disposal

The ocean disposal method is the only method to which the proposed general permit would apply and impose requirements. If a carcass cannot be moved to a land-based disposal location, left above ground to decay, or be buried in-place, it may be towed or moved offshore via another transportation method and disposed in the ocean, provided that an acceptable ocean disposal “site” or location can be identified. Ocean disposal of a marine mammal or sea turtle carcass entails selection of an appropriate location for the carcass to be released or sunk to prevent the carcass from drifting or washing back onshore, becoming a hazard to navigation, and/or damaging protected and sensitive habitats. The carcass may float due to gas formation from decomposition. To facilitate rapid sinking, opening the body cavity may be necessary. If the carcass is to be sunk rather than released at the disposal site, appropriate carcass preparation may be necessary ( e.g., piercing the body cavity, attaching weights, cement barriers, or chains) at the ocean disposal site so that the carcass will not return to shore or pose a hazard to navigation.

VI. Potential Consequences of Marine Mammal and Sea Turtle Carcass Disposal in the Ocean and Why a General Permit Is Appropriate

Leaving a marine mammal or sea turtle carcass in the environment to decompose ( e.g., in-place decomposition or burial, ocean disposal) provides many benefits to terrestrial, pelagic and benthic ecosystems (NMFS, 2022). Marine mammal and sea turtle carcasses which become stranded on shores and are left in-place to decompose or are buried are an integral part of coastal ecosystems providing a key source of food to scavengers and nutrients to the sediments, which may be utilized by algae and plants potentially increasing landscape heterogeneity (Bui 2009; Laidre et al., 2018; Quaggiotto et al., 2022; Schultz et al., 2022). Marine mammal and sea turtle carcasses that decompose while floating in ocean waters provide an energy-rich source of food for other marine animals, such as orcas and sharks (Leclerc et al., 2011; Quaggiotto et al., 2022; Schultz et al., 2022; Tucker et al., 2019; Whitehead and Reeves, 2005). Most marine mammal and sea turtle carcasses sink to the seafloor and decompose naturally (Quaggiotto et al., 2022; Schultz et al., 2022). Whale carcasses are a significant source of carrion in the marine environment, representing a huge food supply to scavengers and decomposers (Smith and Baco, 2003).

Whale falls, which occur naturally, are the most studied examples of marine mammal carcass decomposition on the seafloor (Smith et al., 2015). Whale falls are sites of intense and lasting enrichment of organic material and sulfides on the seafloor which attract and sustain diverse communities of vertebrate and invertebrate scavengers (Quaggiotto et al., 2022). Most deep-sea benthic ecosystems are organic-carbon limited and, in many cases, are dependent upon organic matter from surface waters (Smith and Baco, 2003). A sunken carcass provides a large load of organic carbon to the seafloor and enhances the structural complexity of the seafloor, provides habitats for chemosynthetic organisms and results in the establishment of specialized ( print page 81523) biological assemblages (Smith and Baco, 2003; Oldach et al., 2022; Smith et al., 2015). Over 20 macrofaunal species are known to exclusively inhabit the microenvironment formed by large organic falls and over 30 other macrofaunal species are known to inhabit these sites (Smith and Baco, 2003). The deep-sea benthic ecosystem response to whale falls has been the subject of scientific study and several stages of succession have been observed in the assemblages (Smith and Baco, 2003). The duration of these stages varies greatly with carcass size, but generally occur as follows. The first stage is marked by the formation of bathyal scavenger assemblages that include hagfishes, sleeper sharks, crabs, and amphipods. During the second stage, sediments surrounding the carcass, which have become enriched with organic carbon, become colonized by high densities of worms ( e.g., Dorvilleidae, Chrysopetalidae). Once the consumption of soft tissue is complete, decomposition proceeds dominantly via anaerobic microbial digestion of bone lipids. The efflux of sulfides from the bones may, depending upon the size of the skeleton, provide for the formation of chemoautotrophic assemblages, which marks the third stage of succession. Chemoautotrophic assemblages formed typically consist of organisms such as heterotrophic bacteria, mussels, snails, worms, limpets, and amphipods.

Water and sediment quality may be negatively affected by at-sea disposals of marine mammal carcasses because a carcass could release contaminants into the water during decomposition (NMFS, 2022). Because contaminants would dilute rapidly in the water or break down over time in the tissues, the adverse impact would be minor and no different than what would happen naturally had the carcass sank to the seafloor and decomposed (NMFS, 2022).

The EPA has permitted numerous at-sea disposals of marine mammal carcasses under the MPRSA. In 2020, the EPA conducted biological, chemical, and physical monitoring of a location offshore where several marine mammal carcasses had been sunk for disposal between 2009 and 2020, with the most recent disposal occurring six months prior to monitoring. The purpose of this survey was to determine the impact the decomposing whales may have caused to the immediate benthic community and surrounding area. Monitoring results from a recently disposed humpback whale carcass revealed that the carcass was reduced to whale bones with minimal whale tissue remaining within six months and found no measurable impact on sediment quality parameters (including total organic carbon, grain size, and polychlorinated biphenyl concentration) from decomposition.

Less research is available regarding at-sea decomposition of sea turtle carcasses. When a sea turtle dies at sea, however, the carcass typically sinks until decomposition gases cause the body to bloat and float to the surface (Schultz et al., 2022). Partially submerged, sea turtle carcasses may drift as they are transported by winds and currents until it washes onshore or decomposes further and sinks to the seafloor (Santos et al., 2018). Once settled on the seafloor, sea turtle carcasses would decompose naturally (Schultz et al., 2022). The EPA seeks to minimize the adverse impacts to the marine environment from the materials used to sink carcasses through required consultation by the permittee with the applicable EPA MPRSA Coordinator. Materials that have been used for sinking marine mammal carcasses under the MPRSA include jute rope, sandbags, concrete and steel cables that do not cause adverse impact on water or sediment quality (NMFS, 2022). Materials used effectively to do so include: (1) small volumes of sand that do not cause an adverse effect on the seafloor substrate type; (2) burlap sandbags and jute rope (used to sink smaller carcasses) because they are non-plastic, especially biodegradable materials that would not persist or cause an ingestion hazard (Araya-Schmidt and Queirolo, 2019; Rautenbach et al., 2024; Unsworth et al., 2019; Wang et al., 2021; Zhang et al., 2015); (3) jute rope used to tie the bags to the animal that is the shortest length needed so to minimize the risk of entanglement; and (4)) concrete keel blocks and steel cable used to sink larger carcasses made from non-plastic, inert, materials that are not anticipated to degrade the water quality of the seafloor or the water column (Melchers et al., 2022; Moffat et al., 2017; NMFS, 2022; Sun et al., 2022). Generally, marine mammal and sea turtle strandings represent a minimum measure of actual at-sea mortality as scientific studies have estimated that stranding events represent only 10-20% of total mortalities in open ocean environments (Epperly et al., 1996; Hart et al., 2006; Santos et al., 2018).

Considering the available scientific information on marine mammal and sea turtle strandings, marine mammal and sea turtle in situ decomposition and organic falls, the EPA finds that the potential adverse effects of ocean disposal of marine mammal or sea turtle carcasses are minimal for the following reasons: (1) except in rare instances, most marine mammal or sea turtle carcasses would sink to and decompose on the ocean floor rather than wash ashore; (2) the formation of an organic fall is a naturally occurring phenomenon with no known adverse environmental impacts; (3) the materials used for sinking carcasses are chosen to minimize adverse environmental impacts; (4) the site selection for sinking carcasses requires consultation to avoid adverse environmental impacts; and (5) transporting a marine mammal or sea turtle carcass to sea for ocean disposal, when other disposal methods are not viable, presents a minimal perturbation to a naturally occurring phenomenon.

The EPA's findings are consistent with the statutory considerations applicable to permit issuance under the MPRSA because: (1) the general permit requires consideration of land-based alternatives; (2) marine mammal and sea turtle carcass disposals will not cause a significant adverse effect on human health, fisheries resources, or marine ecosystems; and (3) marine mammal and sea turtle carcass disposals will not result in permanent adverse effects.

VII. Statutory and Regulatory Background

MPRSA Section 101, 33 U.S.C. 1411, prohibits the unpermitted transportation of any material for the purpose of dumping it into ocean waters. MPRSA Section 102(a)(1), 33 U.S.C. 1412(a), authorizes the EPA, after notice and the opportunity for public hearings, to issue ocean dumping permits. MPRSA Section 104(c), 33 U.S.C. 1414(c), authorizes the EPA to issue general permits for the transportation for the purpose of dumping, dumping, or both for specified materials, or classes of materials, it determines will have a minimal adverse environmental impact. The EPA regulations explain that EPA may issue general permits for the dumping of materials that have a minimal adverse environmental impact and are generally disposed of in small quantities, or emergency permits for specific classes of materials that must be disposed of in emergency situations (40 CFR 220.3(a) and (c)). The towing or other method of transportation to move a marine mammal or sea turtle carcass offshore by any person for disposal at sea constitutes transportation of material for the purpose of dumping in ocean waters, and thus is subject to the MPRSA. Because the material to be disposed will consist of the carcass or carcasses, there will be no materials present that are prohibited by 40 CFR 227.5. ( print page 81524)

VIII. Consideration of Alaska Natives Engaged in Subsistence Uses

Alaska Natives engaged in subsistence uses are not required to, but may, transport and dispose of marine mammal carcasses in ocean waters. However, Section B of the proposed general permit includes specific considerations that are available to Alaska Native persons engaged in subsistence uses. For purposes of this proposed general permit, the EPA intends the term “Alaska Native” to be based on the statutory term defined at 16 U.S.C. 1371(b) that refers to “any Indian, Aleut, or Eskimo who resides in Alaska and who dwells on the coast of the North Pacific Ocean or the Arctic Ocean” who takes a marine mammal for subsistence purposes or for purposes of creating and selling authentic native articles of handicrafts and clothing and provided such taking is not in a wasteful manner. Section B of the proposed general permit authorizes ocean disposal of marine mammal carcasses by an Alaska Native engaged in subsistence uses for two reasons. First, marine mammals are comparatively abundant and widely distributed throughout coastal Alaska, and Alaska Natives depend upon these natural resources for many customary and traditional uses. Collectively, the customary and traditional uses ( e.g., food, clothing) are referred to as “subsistence uses.” Alaska Native subsistence uses of marine mammals have been ongoing for thousands of years. The United States has recognized the importance of subsistence uses of marine mammals by Alaska Natives through enactment of the MMPA, which expressly exempts Alaska Natives engaged in subsistence uses from the general prohibition on “taking” marine mammals under certain circumstances (16 U.S.C. 1371(b)). The MPRSA, by comparison, does not include a similar exemption for the transport and disposal in ocean waters by Alaska Natives when marine mammal carcasses (or parts thereof) have no further use for subsistence purposes. Section B of the proposed general permit accommodates the absence of an MPRSA exemption similar to the MMPA exemption by facilitating authorization of ocean disposal of marine mammal carcasses by Alaska Natives.

Second, many coastal communities of Alaska Natives who engage in subsistence uses are located in remote locations and thus face a time-critical public safety issue, for example, when a marine mammal carcass washes ashore near a village or town, or a marine mammal is harvested or salvaged, and the carcass is hauled ashore near a village or town. Such carcasses may attract bears or other scavenger animals, which may increase the risk of human injury or mortality. For these reasons, there are specific provisions in the proposed general permit for Alaska Natives engaged in subsistence activities to expedite the transport and disposal of marine mammals in ocean waters, if necessary.

With these considerations in mind, the EPA's intent in reissuing the Alaska Native-specific permit conditions (see Section B) is, to the maximum extent allowable, to avoid unnecessary interference with long-standing subsistence uses and traditional cultural practices, and to recognize the unique circumstances of Alaska Natives engaged in subsistence uses. In proposing this general permit, the EPA does not intend to change, alter, or otherwise affect subsistence uses of marine mammals by Alaska Natives engaged in subsistence uses. Section B sets forth requirements designed to address these considerations while also complying with international treaties, the MPRSA, and the EPA's regulations at 40 CFR subchapter H. The primary differences between Sections A and B relate to Federal agency concurrence, distance from land requirements for ocean disposal, and reporting requirements.

To further clarify, the proposed general permit does not in any way require ocean disposal of marine mammal carcasses; it merely authorizes ocean disposal of marine mammal carcasses when there is a need for such disposals. Additionally, the proposed general permit is not intended to and does not regulate: any subsistence activities of Alaska Natives, including hunting, harvesting, salvaging, hauling, dressing, butchering, distribution, and consumption of marine mammals (or any other species used for subsistence purposes); the transportation and dumping of marine mammal carcasses on land, such as in whale boneyards or in inland waters ( i.e., waters that are landward of the baseline of the territorial sea, such as rivers, lakes and certain enclosed bays or harbors); or leaving marine mammal carcasses to decompose in place on sea ice (or in a hole or lead in the sea ice), where there is no transportation by vessel or other vehicle for the purpose of ocean disposal. The purpose of this proposed general permit is to expedite required authorizations the EPA manages for the ocean disposal of marine mammal carcasses.

IX. Discussion

Considering the information presented in the previous section, the EPA determines that the potential adverse environmental impacts of marine mammal or sea turtle carcass disposal at sea are minimal and that marine mammal and sea turtle carcasses often must be disposed of to mitigate threats to public safety ( e.g., recreational uses in nearby waters), as well as risks of navigation hazards. As such, issuance of a general permit for the transportation for the purpose of disposal and the ocean disposal of marine mammal and sea turtle carcasses is appropriate under the MPRSA.

Authorization under Section A of the proposed general permit is available to Tribal, Federal, state, and local government officials and employees acting in the course of official duties and to MLHSRP Stranding Agreement Holders. Section A authorizes such persons to transport and dispose of marine mammal or sea turtle carcasses in ocean waters. Section A requires that each such permittee consult with the MLHSRP of NMFS—and recommends that each such general permittee consults with the applicable USCG District Office—prior to initiating any ocean disposal activities with respect to a marine mammal or sea turtle carcass. Permittees authorized under Section A would need to consult with and obtain concurrence from the applicable EPA Regional Office on selection of an ocean disposal site, which must be at a location three miles seaward of the mean lower low water line (ordinary low water mark) along the coast or a “closing line” across river mouths and openings of bays as demarcated on nautical charts. Disposal sites in the ocean waters of Puget Sound are not subject to the distance from shore restriction, however, permittees would need to consult with and obtain concurrence from EPA Region 10 on selection of the site. The EPA has requested Clean Water Act Section 401 certification from the state of Washington and from Tribes in the Puget Sound area for disposals in the ocean waters of Puget Sound that are not subject to the distance from shore restriction. All permittees authorized under Section A also need to submit a report to the applicable EPA Regional Office on the ocean disposal activities after the disposal.

Alaska Natives engaged in subsistence uses are not required to, but may, transport and dispose of marine mammal carcasses in ocean waters. When disposal in ocean waters is the selected disposal approach, Section B of ( print page 81525) the proposed general permit authorizes any Alaska Native engaged in subsistence uses to transport and dispose of a marine mammal carcass in ocean waters. Under Section B, the Alaska Native general permittee selects an ocean disposal site sufficiently far offshore so that currents and winds are not expected to return the carcass to shore and the carcass is not expected to pose a hazard to navigation and afterwards submits, on an annual basis, a report to EPA Region 10 on ocean disposal activities conducted in the prior calendar year. Section B does not require a statement of need for selecting ocean disposal nor does it specify a distance requirement. The EPA has requested Clean Water Act Section 401 certification from the state of Alaska for the Section B authorization.

X. Statutory and Executive Order Reviews

A. Paperwork Reduction Act

The information collections under this general permit are covered under the MPRSA Information Collection Request (ICR) that has been submitted for approval to the Office of Management and Budget (OMB) under the Paperwork Reduction Act. The ICR document that the EPA prepared for all MPRSA activities has been assigned EPA ICR number 0824.08.

Under section 104(e) of the MPRSA, 33 U.S.C. 1414(e) and implementing regulations at 40 CFR 221.1-221.2, applicants for an MPRSA permit must provide information that the EPA determines is necessary to review and evaluate such application, for example, to ensure that ocean dumping is appropriately regulated and will not harm human health or the marine environment. To meet United States' reporting obligation under the London Convention, the EPA reports some of this information in the annual United States ocean dumping report, which is transmitted to the International Maritime Organization for treaty compliance purposes.

Respondents/affected entities: Any officer, employee, agent, department, agency, or instrumentality of Tribal, Federal, state, or local unit of government, as well as any MLHSRP Stranding Agreement Holder, who disposes of a marine mammal or sea turtle carcass in ocean waters and any Alaska Native engaged in subsistence uses who disposes of a marine mammal carcass in ocean waters will be affected by this proposed general permit. Under this proposed general permit, respondents do not need to request permit authorization because the general permit authorizes ocean disposal of a marine mammal or sea turtle carcass by an eligible person.

Respondent's obligation to respond: Pursuant to regulations implementing Section 104(e) of the MPRSA, 33 U.S.C. 1414(e), at 40 CFR 221.1-221.2, the EPA requires all ocean dumping permittees to supply specified reporting information.

B. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action has Tribal implications. However, the proposed general permit will neither impose substantial direct compliance costs on federally recognized Tribal governments, nor preempt Tribal law. The proposed general permit has Tribal implications because it may affect traditional practices of some Tribes.

The EPA consulted with Tribal officials under the EPA Policy on Consultation and Coordination with Indian Tribes early in the process of reviewing the current general permit and preparing to re-issue this proposed general permit to allow them to have meaningful and timely input into its development.

On February 14, 2023, the EPA emailed a consultation notification letter with a consultation and coordination plan to all 574 federally recognized Tribes, notifying them of this upcoming action and inviting Tribal leaders and designated consultation representatives to participate in the Tribal consultation and coordination process.

In early 2024, when the EPA was considering expanding the scope of the general permit to include ocean waters of Puget Sound, it held an additional Tribal coordination and consultation period for the Tribes in the Puget Sound area that would be affected by any such expansion of the permit's scope.

On April 2, 2024, the EPA emailed a consultation notification letter with a consultation and coordination plan to federally recognized Tribes in the Puget Sound area, notifying the Tribes of the proposal to modify the scope of the permit and inviting Tribal leaders and designated consultation representatives to participate in the Tribal consultation and coordination process. A summary of the Tribal consultation and coordination effort, the Tribal input received, and how the EPA considered the input received may be found in the docket for this action (Docket ID No. EPA-HQ-OW-2023-0329).

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Stacey M. Jensen,

Director, Oceans, Wetlands, and Communities Division.

For the reasons stated above, the EPA proposes to issue the general permit for the transportation and ocean disposal of marine mammal or sea turtle carcasses as follows:

General Permit for the Transportation and Ocean Disposal of Marine Mammal and Sea Turtle Carcasses

A. General Requirements for Governmental Entities and Stranding Agreement Holders

Except as provided in Section B below, any officer, employee, agent, department, agency, or instrumentality of Tribal, Federal, state, or local unit of government, and any MLHSRP Stranding Agreement Holder, is hereby granted a general permit to transport for the purpose of disposal and dispose of marine mammal and sea turtle carcasses in ocean waters subject to the following conditions:

1. The permittee shall consult with a Stranding Agreement Holder of NMFS prior to initiating any disposal activities. Points of contact for Stranding Agreement Holders are available at http://www.epa.gov/​ocean-dumping/​ocean-disposal-marine-mammal-carcasses.

2. The permittee shall consult with and obtain written concurrence (via email or letter) from the applicable EPA Regional Office on ocean disposal site selection. A disposal site must be at a location three miles seaward of the mean lower low water line (ordinary low water mark) along the coast or “closing lines” across river mouths and openings of bays as demarcated on nautical charts. Disposal sites in the ocean waters of Puget Sound are not subject to the distance from shore restrictions, however permittees would need to consult with and obtain concurrence from EPA Region 10 on selection of the site. Because the presence of a marine mammal or sea turtle carcass near human habitation or recreation areas may pose a time-critical public safety issue, the permittee may obtain concurrence via telephone from the applicable EPA Regional Office provided that the permittee subsequently obtains written concurrence (via email or letter). Points of contact at the EPA are available at http://www.epa.gov/​ocean-dumping/​ocean-disposal-marine-mammal-carcasses.

3. If a determination is made that the carcass must be sunk, rather than released at the disposal site, the transportation and disposal of materials necessary to ensure the sinking of the carcass are also authorized for ocean dumping under this general permit. When materials are to be used to sink the carcass, the permittee must first consult with and obtain written concurrence (via email or letter) from the applicable EPA Regional Office on the selection of materials. Any materials described in 40 CFR 227.5 (prohibited materials) or 40 CFR 227.6 (constituents prohibited as other than trace amounts) shall not be used. The transportation and dumping of any materials other than the materials necessary to ensure the sinking of the carcass are not authorized under this general permit and constitute a violation of the MPRSA. Because the presence of a marine mammal or sea turtle carcass near human habitation or recreation areas may pose a time-critical public safety issue, the permittee may obtain concurrence via telephone from the applicable EPA Regional Office provided that the permittee subsequently obtains written concurrence (via email or letter).

4. The permittee shall submit a report on the ocean disposal activities authorized by this general permit to the applicable EPA Regional Office within 30 days after carcass disposal. This report shall include:

a. A description of the carcass(es) disposed ( e.g., species, approximate length, general condition, floating or not);

b. The date and time of the disposal, the latitude and longitude of the ocean disposal site, and the geodetic datum associated with the coordinates of the disposal site. Latitude and longitude of the disposal site shall be reported at the highest degree of accuracy available on board the vessel that transported the carcass ( e.g., onboard geographic position system technology);

c. The name, title, affiliation, and contact information of the person in charge of the disposal operation and the person in charge of the vessel or vehicle that transported the carcass (if different than the person in charge of the disposal);

d. A statement of need and rationale for selecting ocean disposal rather than other disposal options; and ( print page 81527)

5. The permittee shall immediately notify the EPA of any violation of any condition of this general permit.

B. Requirements for Any Alaska Native Engaged in Subsistence Uses

Notwithstanding Section A, any Alaska Native engaged in subsistence uses is hereby granted a general permit to transport for the purpose of disposal and dispose of marine mammal carcasses in ocean waters subject to the following conditions:

1. The permittee shall submit a report (via email or letter) on all disposal activities authorized by this general permit that the permittee has conducted in the prior calendar year. Reports shall be submitted to EPA Region 10 within 30 days of the end of the calendar year. Contact information for EPA Region 10 is available at http://www.epa.gov/​ocean-dumping/​ocean-disposal-marine-mammal-carcasses. This report shall include:

a. The number and type of carcasses disposed;

b. A description of the general vicinity in which the carcasses were disposed; and

c. The name and contact information of the permittee.

2. Where ocean disposal is the selected approach, marine mammal carcasses must be towed or otherwise transported to a site offshore where, based on available information, which may include local or traditional knowledge, currents and winds are not expected to return the carcass to shore and the carcass is not expected to pose a hazard to navigation.