[Federal Register Volume 89, Number 86 (Thursday, May 2, 2024)]
[Proposed Rules]
[Pages 35769-35772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-09258]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 216

[Docket No. 240415-0108]
RIN 0648-BK65


Proposed Rule To Modify the Duration of Certain Permits and 
Letters of Confirmation Under the Marine Mammal Protection Act

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

ACTION: Proposed rule; request for comments.

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SUMMARY: NMFS proposes to modify the regulations for Marine Mammal 
Protection Act (MMPA) section 104 permits, including scientific 
research, enhancement, photography, and public display permits and 
Letters of Confirmation (LOCs). The modification would remove the 5-
year regulatory limitation on the duration of section 104 permits and 
LOCs. This would give NMFS the discretion to issue these permits for 
longer than 5 years where such a duration would be appropriate. This 
proposed rule would apply only to permits and authorizations issued 
under section 104 of the MMPA.

DATES: Comments and information must be received no later than June 3, 
2024.

ADDRESSES: A plain language summary of this proposed rule is available 
at https://www.regulations.gov/docket/NOAA-NMFS-2024-0054. You may 
submit comments on this document, identified by NOAA-NMFS-2024-0054, by 
any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Visit https://www.regulations.gov and type NOAA-NMFS-2024-0054 in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
     Mail: Submit written comments to Permits and Conservation 
Division, Office of Protected Resources, NMFS, 1315 East-West Highway, 
Room 13705, Silver Spring, MD 20910; ATTN: Jolie Harrison, Chief, 
Permits and Conservation Division.
    Instructions: Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered by NMFS. All comments received are a part of the 
public record and will generally be posted for public viewing on 
https://www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter ``N/A'' in the required fields if you wish to remain 
anonymous).

FOR FURTHER INFORMATION CONTACT: Sara Young or Carrie Hubard, Office of 
Protected Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION:

Authority for Action

    Under section 104 of the MMPA (16 U.S.C. 1374), NMFS may issue 
permits for the take or importation of marine mammals for:
     scientific research (MMPA section 104 (c)(3));
     enhancing the survival or recovery of the species or stock 
(MMPA section 104 (c)(4));
     public display (MMPA section 104 (c)(2));
     commercial or educational photography (MMPA section 
104(c)(6)); and
     scientific research that may result only in taking by 
Level B harassment under the MMPA's General Authorization provisions 
(MMPA section 104 (c)(3)). Level B harassment refers to activities that 
have the potential to disturb but not injure a marine mammal.
    The implementing regulations for scientific research, enhancement, 
public display, and photography permits can be found at 50 CFR 216.31-
216.41. The implementing regulations for issuing LOCs under the General 
Authorization can be found at Sec.  216.45. Applying for an LOC is a 
simpler and more expedited process than applying for a scientific 
research permit. An LOC confirms that an applicant's proposed research 
activities will only result in Level B harassment (i.e., activities 
with the potential to disturb but not injure) and will only target 
marine mammals that are not endangered or threatened under the 
Endangered Species Act (ESA). A scientific research permit is required 
for research on ESA-listed species or for research that involves 
physical contact with marine mammals.

Background

    Section 2 of the MMPA, 16 U.S.C. 1361, provides that it is the 
Sense of Congress that marine mammals ``should be protected and 
encouraged to develop to the greatest extent feasible commensurate with 
sound policies of resource management and that the primary objective of 
their management should be to maintaining the health and stability of 
the marine ecosystem.'' Section 2, however, also includes Congress's 
finding that there is inadequate knowledge of the ecology and 
population dynamics of marine mammals. Since the MMPA was enacted in 
1972, NMFS has issued permits to allow research on marine mammals as 
well as other permits and authorizations allowing take of marine 
mammals as specified in section 104.
    Take, as defined in section 3 of the MMPA, 16 U.S.C. 1362, and in 
Sec.  216.3,

[[Page 35770]]

means to harass, hunt, capture, collect, kill marine mammals, or any 
attempt to do so. While the permit types that are the subject of this 
rule authorize take of marine mammals, the majority of the take 
authorized under these permits is for harassment of marine mammals or 
collection of samples rather than lethal take. For example, a typical 
photography permit authorizes filming of marine mammals by underwater 
divers or via a drone to collect footage for a documentary series. Most 
LOCs under the GA are issued to researchers who photograph bottlenose 
dolphins (Tursiops truncatus) to identify individuals and study 
distribution and social patterns. Some research permits authorize 
scientists to import marine mammal biological samples to study disease, 
genetics, prey species, and hormones. Research permits cover a wide 
variety of projects, such as capturing, sampling, tagging, and 
releasing seals to find out how deep they dive or remotely biopsy 
sampling and tagging large whales to study their migrations.
    Section 104 permits like those described above authorize activities 
that promote the goals set out in section 2 of the MMPA. Most permits 
authorize research on marine mammals, which ultimately benefits the 
species. As scientists conduct permitted research, they expand our 
knowledge of the abundance, distribution, and health of these animals. 
Resource managers then use that best available data to inform their 
decisions. NMFS also issues permits for commercial and educational 
photography of non-endangered marine mammals. The final product of 
these permits might, for example, be a documentary television series 
that may inspire awe, share conservation messages, and educate the 
public about marine mammals.
    Section 104(b) of the MMPA requires that all permits specify ``the 
period during which the permit is valid.'' The MMPA does not limit how 
long section 104 permits or LOCs can be valid. However, there are 
regulatory limitations that prevent MMPA section 104 permits and LOCs 
from being valid longer than 5 years (Sec. Sec.  216.35 and 216.45, 
respectively). This proposed rule would remove the 5-year regulatory 
limitation on the duration of MMPA section 104 permits and LOCs. This 
would allow NMFS to issue section 104 permits and LOCs for longer than 
5 years, as appropriate. Each permit would have an expiration date, 
tailored to the specific activities proposed by the applicant, which 
would be subject to public comment.

Need for the Action

    NMFS has been issuing marine mammal permits under section 104 for 
almost 50 years, and NMFS' implementing regulations have not been 
updated since 1996. Based on decades of experience with the issuance of 
these permits and the activities conducted pursuant to them, we believe 
a change is warranted to allow section 104 permits with durations 
greater than 5 years, in certain circumstances, as discussed below.
    Most MMPA section 104 permits (93 percent of current permits) are 
scientific research permits, which result in data that informs 
management and conservation of marine mammal species. Rigorous studies 
of these long-lived species often require years, even decades, of data 
collection. Sixty percent of the current scientific research permit 
holders have had a permit for 20 or more years, meaning four or more 
permit cycles. Seventeen permit holders have held a permit for more 
than 40 years. Many researchers have dedicated their careers to 
conducting longitudinal studies. For example, one research group has 
been studying the population dynamics of Weddell seals (Leptonychotes 
weddellii) since 1968, while another scientist has been studying 
dolphins in Florida for over 50 years. NMFS science centers have held 
MMPA research permits since the creation of the MMPA and continue to 
hold 13 permits today. The MMPA requires NMFS to compile abundance and 
distribution data on marine mammals and publish the findings as Stock 
Assessment Reports. The need for these research activities is expected 
to continue into the extended future and is an example of why a permit 
of longer than 5 years in duration may be appropriate. Regardless of 
the requested duration of research, every application for a permit or 
authorization would include justification for the requested duration 
and all permits and authorizations issued would have expiration dates.
    Another potential example of a permit that may merit a longer time 
period might be for non-releasable marine mammals maintained in 
permanent care in academic facilities, zoos, and aquariums for research 
or enhancement purposes for the duration of their lives. Under the 
proposed change, these permit holders might request a permit for longer 
than 5 years, and the agency may, in certain circumstances, depending 
on the specifics of the research or enhancement, issue a permit for a 
longer term.
    Because NMFS has been issuing permits for decades, the effects of 
specific permitted activities on marine mammals, including particular 
research techniques, are well known. Most research methodologies have 
become standardized over time. Permit holders tend to request and use 
the same techniques year after year because they are effective and 
create continuity across their long-term data sets. As a result, the 
impacts of their activities conducted under consecutive permits is 
expected to be the same or similar. Historically, moreover, research 
and filming methods, have not raised significant public concern. As 
required by statute, NMFS gives the public the opportunity to comment 
on permit applications it processes, via notice in the Federal 
Register. Substantive comments have been received infrequently over the 
course of the permit program. Proposed activities are evaluated to 
ensure they are humane as required by issuance criteria (see 
Implementation and Oversight section). Researchers working under a 
scientific research permit studying marine mammal parts typically 
conduct analyses in a laboratory using marine mammal samples without 
interacting with wild animals. Researchers working under an LOC and 
filmmakers working under a commercial photography permit are restricted 
to activities that only have the potential to disturb (not kill or 
physically injure) marine mammals. They are not allowed to conduct any 
activity that has the potential to injure an animal, including any 
physical contact. Additionally, most filmmakers and many researchers 
want to observe and record natural marine mammal behavior. As a result, 
they can be expected to conduct their activities in a manner that 
avoids or minimizes any reaction of the animals to the permitted 
activity.
    An additional benefit of removing the 5-year restriction on permits 
would be to make the MMPA permitting regulations consistent with those 
of the ESA. Many permits are issued under both the MMPA and ESA because 
the target species are marine mammals that are listed as threatened or 
endangered, and thus protected under both statutes. Unlike the current 
MMPA regulations, the ESA section 10 permit regulations do not limit 
the number of years an ESA section 10(a)(1)(A) scientific research and 
enhancement permit may be valid (50 CFR part 222) Consistency between 
the MMPA and ESA permitting regulations with respect to permit duration 
would allow NMFS to issue joint MMPA-ESA permits with terms of

[[Page 35771]]

longer than 5 years, if warranted. NMFS currently issues some 10-year 
ESA permits for scientific research and enhancement on species such as 
sawfish, sea turtles, and sturgeon. NMFS cannot currently do the same 
for permits involving marine mammals because of the 5-year limit on 
permit duration under the MMPA regulations, even if the research would 
otherwise qualify for a 10-year permit under the ESA.
    This change would provide greater flexibility and efficiency to 
permit applicants and the agency. Increasing the permit durations would 
decrease how often researchers have to apply for a permit, thus 
decreasing the amount of time and effort required in reapplying to 
continue their research. As shown above, decades of permit data show 
that researchers tend to apply for multiple permits throughout their 
career. Lengthening permit duration where appropriate would promote 
efficiency and lessen the burden on our permit holders, while still 
providing the same protections for marine mammals as mandated by the 
MMPA.

Implementation and Oversight

Information Required in Applications

    Applications for MMPA section 104 special exception permits and 
LOCs would be evaluated and processed in the same manner as they are 
now in accordance with 50 CFR part 216. Applicants would still have to 
include their proposed start and end dates, as well as a description of 
the frequency and seasonality of their proposed activities in their 
application. Currently, applicants for section 104 permits and LOCs can 
request a time period of 5 years or less. Under the proposed change, 
applicants may request a permit duration longer than 5 years, which may 
be more appropriately aligned with the project's goals rather than an 
arbitrary 5 year duration. The agency may, in its discretion, issue a 
permit for such a term, provided the proposed duration is justified and 
appropriate for the applicant's project and objectives, is supported by 
the applicant's history with previous MMPA permits, has undergone 
public comment, and meets all statutory and regulatory issuance 
criteria. All permits and authorizations issued would have expiration 
dates. While NMFS proposes to remove the 5-year regulatory maximum 
duration, NMFS expects that there will continue to be projects for 
which a permit for a terms of 5 years or less will be appropriate. For 
example, permits such as those for commercial or educational 
photography are issued for discrete projects that take place at 
specific times, rarely requiring more than a year or two. Similarly, 
permits for importation of marine mammals for public display are issued 
for a singular or discrete action, which would typically warrant a 
permit of short duration. Thus, the duration of the permit would be 
determined based on the specific project proposed and the justified 
duration of that project.

Opportunity for Public Comment

    This proposed regulatory change would not remove the public's 
opportunity to comment on permit applications and any major permit 
amendments. NMFS would continue to publish notices in the Federal 
Register for a 30-day public comment period when complete permit 
applications and requests for major amendments are received consistent 
with statutory and regulatory requirements (16 U.S.C. 1374(d) and Sec.  
216.33(d), respectively). These notices provide the public an 
opportunity to comment on the proposed permit duration. NMFS would also 
continue to solicit comments from the Marine Mammal Commission 
consistent with Sec.  216.33(d)(2), and other relevant federal and 
state agencies in accordance with Sec.  216.33(d)(3), concurrent with 
the public comment period. NMFS would continue to consider all public 
and expert comments on a proposed permit application, including the 
proposed duration, prior to permit issuance. Substantial public 
interest in a particular application might warrant a term of 5 years or 
less, to provide the public with more frequent opportunities to 
comment. LOCs do not currently require a public comment period and that 
would not change.

Issuance Criteria

    To obtain an MMPA section 104 permit, applicants must meet certain 
statutory and regulatory issuance criteria. This includes, among other 
things, the regulatory issuance criteria at Sec.  216.34, which require 
applicants to demonstrate, for the time period proposed, that the 
activity is:
     humane and with no unnecessary risks;
     consistent with regulatory restrictions;
     consistent with the purposes and policies of the ESA (if 
threatened or endangered species are involved);
     not likely to have a significant adverse impact on the 
species or stock;
     conducted by personnel with expertise and adequate 
facilities and resources;
     conducted by personnel with adequate resources for marine 
mammals held captive or transported; and
     that any requested import or export will not likely result 
in additional taking.
    Additional criteria apply for depleted, threatened, and endangered 
marine mammals. These criteria would still apply regardless of permit 
duration.
    In addition to the regulatory criteria above, NMFS would also 
consider whether the applicant has previously held a permit, and if so, 
whether they have successfully carried out the permitted objectives. 
For example, for research permits, this may include whether the permit 
holder obtained funding, collected data, and made the results available 
to the scientific community in a reasonable period. As explained above 
(see Need for Action), most permits issued under section 104 have not 
raised substantial public concern, and the impacts of many activities 
conducted under section 104 permits are well known. If an applicant 
proposes activities that are considered novel or are likely to be 
controversial, a shorter permit duration may be warranted.

Agency Oversight

    Under the proposed change, permit and LOC holders would still be 
subject to agency oversight. For example, permit and LOC holders must 
submit annual reports as required by the regulations at Sec.  216.38 
and Sec.  216.45(d)(2), respectively. This requirement is universal, 
regardless of how long their permit or LOC is valid. Further, permit 
holders are required to stop permitted activities and submit incident 
reports for incidents such as mortalities, exceeding authorized take, 
and taking protected species that were not authorized. LOC and 
photography permit holders must temporarily stop authorized research if 
they exceed Level B harassment. Annual and incident reports allow NMFS 
to monitor permit and LOC compliance and impacts to protected species 
and are available to the public. NMFS would maintain its authority for 
permit or LOC modification, suspension, or revocation. For example, 
NMFS may determine a permit modification is warranted to add permit 
restrictions in response to information provided in annual or incident 
reports.
    For any amendment to a permit, or change to an LOC, the agency 
would reexamine the NEPA analysis based on information provided in the 
amendment request, taking into consideration information in annual and 
incident reports and in published literature.

[[Page 35772]]

Likewise, if ESA listed species are involved and the action is covered 
under an ESA section 7 consultation and, for example, a new species is 
listed or critical habitat is designated, NMFS would review the new 
information to determine if consultation needs to be reinitiated in 
accordance with 50 CFR 402.16. If these analyses produce new 
information that would warrant a change to a permit or permits, NMFS 
retains the ability to amend permits to add permit conditions, such as 
mitigation measures to minimize impacts to protected species, as 
described in Sec.  216.36(b).

Amendments To Extend the Permit or LOC Duration

    For amendments that extend the duration of individual permits or 
LOCs, the process would work as it does now under the regulations, but 
without the 5-year limit. Any extension of a permit by more than 12 
months would still be considered a major amendment requiring public 
comment. Permit holders may continue to request a minor amendment to 
extend the duration of their permit up to 1 year, if justified. The 
agency would continue to publish in the Federal Register notices of 
receipt of requests for major amendments for a 30-day public comment 
period, and notices of issuance of minor amendments extending a permit 
up to 1 year.

Classification

    Pursuant to the procedures established to implement Executive Order 
12866, the Office of Management and Budget has determined that this 
proposed rule is not significant.
    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), 
the Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Permit and LOC applicants including individuals, academic institutions, 
business or other for-profit organizations, not-for-profit 
institutions, and government organizations are the only entities that 
would be subject to the requirements in these proposed regulations. The 
number of small governmental jurisdictions, small organizations, or 
small businesses affected is approximately less than 150 entities 
total, and less than 35 annually. The change in duration of permits 
would not affect the cost to these small entities, as it would require 
the same amount of time and resources to apply for a 5-year permit as 
it would to apply for a permit of a longer duration. Overall, this rule 
may reduce the costs to these entities because they would spend less 
time applying for permits. For example, the estimated number of burden 
hours to complete a scientific research permit application is 50 hours, 
with an estimated average hourly rate of $32.58. Thus, an applicant for 
a scientific research permit would spend approximately $3,258 and 100 
hours to apply for two consecutive 5-year research permits. If the 
duration limit for special exception permits is removed, the number of 
burden hours and costs to apply for a scientific research permit could 
be reduced to approximately $1,629 and 50 hours for a 10-year permit, 
if issued. A longer duration permit would save additional costs. An 
applicant for a General Authorization LOC would spend approximately 10 
hours and $325.80 to complete a 5-year LOC application, which if issued 
for a longer period, would reduce that cost. Because of this, a 
regulatory flexibility analysis is not required, and none has been 
prepared.
    Notwithstanding any other provision of law, no person is required 
to respond to nor shall a person be subject to a penalty for failure to 
comply with a collection of information subject to the requirements of 
the Paperwork Reduction Act (PRA) unless that collection of information 
displays a currently valid OMB control number. This proposed rule 
contains collection-of-information requirements subject to the 
provisions of the PRA.\1\ No changes to the reporting requirements or 
to the information collection instrument is required as a result of 
this regulatory change, other than removing the 5-year duration 
restriction.
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    \1\ The information collection is currently approved by OMB 
under control no. 0648-0084, Basic Requirements for Special 
Exception Permits and Authorizations to Take, Import, and Export 
Marine Mammals, Threatened and Endangered Species, and for 
Maintaining a Captive Marine Mammal Inventory Under section 104 of 
the MMPA, the Fur Seal Act, and/or section 10(a)(1)(A) of the 
Endangered Species Act.
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List of Subjects in 50 CFR Part 216

    Regulations governing the taking and importing of marine mammals.

    Dated: April 24, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 216 is proposed 
to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1361 et seq.
* * * * *
0
2. In Sec.  216.35, revise paragraph (b) to read as follows:


Sec.  216.35  Permit restrictions.

* * * * *
    (b) Special exception permits expire on the date specified in the 
permit, unless limited or extended in duration by the Director in 
accordance with Sec.  216.36 and Sec.  216.39.
* * * * *
0
3. In Sec.  216.45, revise paragraph (b)(2)(iv) and paragraph (d)(3) to 
read as follows:


Sec.  216.45  General Authorization for Level B harassment for 
scientific research.

* * * * *
    (b) * * *
    (2) * * *
    (iv) The period of time over which the research project or program 
will be conducted (i.e., the requested period of the LOC), including 
the field season(s) for the research, if applicable;
* * * * *
    (d) * * *
    (3) Authorization to conduct research under the General 
Authorization is for the period(s) of time identified in the letter of 
confirmation issued under paragraph (c) of this section, unless limited 
or extended by the Director, or modified, suspended, or revoked in 
accordance with paragraph (e) of this section;
* * * * *
[FR Doc. 2024-09258 Filed 5-1-24; 8:45 am]
BILLING CODE 3510-22-P