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

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 216</CFR> <DEPDOC>[Docket No. 240415-0108]</DEPDOC> <RIN>RIN 0648-BK65</RIN> <SUBJECT>Proposed Rule To Modify the Duration of Certain Permits and Letters of Confirmation Under the Marine Mammal Protection Act</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule; request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Comments and information must be received no later than June 3, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this proposed rule is available at <E T="03">https://www.regulations.gov/docket/NOAA-NMFS-2024-0054.</E> You may submit comments on this document, identified by NOAA-NMFS-2024-0054, by any of the following methods: • <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Visit <E T="03">https://www.regulations.gov</E> 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. • <E T="03">Mail:</E> 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. <E T="03">Instructions:</E> 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 <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), 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). <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Sara Young or Carrie Hubard, Office of Protected Resources, NMFS, (301) 427-8401. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Authority for Action</HD> 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 § 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 ( <E T="03">i.e.,</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. <HD SOURCE="HD1">Background</HD> 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 § 216.3, 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 ( <E T="03">Tursiops truncatus</E> ) 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 (§§ 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. <HD SOURCE="HD1">Need for the Action</HD> 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 ( <E T="03">Leptonychotes weddellii</E> ) 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 f ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 27k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━