Modification of the Duration of Certain Permits and Letters of Confirmation Under the Marine Mammal Protection Act

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 216</CFR> <DEPDOC>[Docket No. 241126-0301]</DEPDOC> <RIN>RIN 0648-BK65</RIN> <SUBJECT>Modification of 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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> NMFS hereby modifies 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) under the General Authorization. The modification removes the 5-year regulatory limitation on the duration of section 104 permits and LOCs. This change gives NMFS the discretion to issue these permits for longer than 5 years, if such a duration is appropriate. This rule applies only to permits and LOCs issued under section 104 of the MMPA. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This rule is effective on January 13, 2025. </EFFDATE> <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 (section 104 (c)(3)); • Enhancing the survival or recovery of the species or stock (section 104 (c)(4)); • Public display (section 104 (c)(2)); • Commercial or educational photography (section 104(c)(6)); and • Scientific research that may result only in taking by Level B harassment, via LOCs issued under the MMPA's General Authorization (GA) provisions (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 GA can be found at 50 CFR 216.45. Applying for an LOC is a simpler and more expedited process than applying for a scientific research permit, and it does not require a public comment period. 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 that will result in take of ESA-listed species or for research that involves more than Level B harassment of 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 maintain the health and stability of the marine ecosystem.” Section 2 also includes Congress' 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 LOCs 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, and kill marine mammals, or any attempt to do so. While all permits that are the subject of this rule authorize take of marine mammals, the majority of the take authorized under these permits is for low-level harassment of marine mammals or collection of biological samples rather than lethal take. Section 104 permits like those described below authorize activities that promote the goals set out in section 2 of the MMPA. The vast majority of permits issued under section 104 (93 percent of current permits) authorize scientific research on marine mammals. Research permits cover a wide variety of projects, such as capturing, sampling, tagging, and releasing seals to find out how deep they dive, remotely biopsy sampling and tagging large whales to study their migrations, or conducting physiology studies on permanently captive marine mammals in academic facilities. In addition to fieldwork activities, some research permits authorize scientists to import and export marine mammal parts ( <E T="03">i.e.,</E> biological samples) to study topics such as disease, genetics, prey species, and hormones; and for curation in scientific collections. Some scientists have permits for both research and enhancement activities, such as vaccinating a wild endangered population against disease or maintaining endangered animals that cannot be released to the wild to contribute to the survival or recovery of the species. LOCs may be issued to researchers who study non-listed marine mammals and whose research methods may only result in low-level ( <E T="03">i.e.,</E> Level B) harassment. An example would be photographing bottlenose dolphins ( <E T="03">Tursiops truncatus</E> ) to identify individuals and study distribution and social patterns. As scientists conduct permitted research, they expand our knowledge of the abundance, distribution, and health of these animals. Resource managers then use the best available science to inform their decisions. Under section 104, NMFS also issues permits for commercial and educational photography of non-listed marine mammals. For example, a typical photography permit authorizes filming of marine mammals by underwater divers or from a vessel or drone to collect footage for a documentary. Filmmakers working under a commercial photography permit are restricted to activities that only have the potential to disturb (not physically contact, injure, or kill) marine mammals. Often the final product of these permits is a documentary television series or similar project that may inspire awe and educate the public about marine mammals. Additionally, NMFS also issues section 104 permits for the import of non-depleted and non-listed marine mammals for the purpose of public display. For example, a public display permit may authorize the import of dolphins from a foreign facility for public exhibition at a U.S. zoo or aquarium. These permits mandate a conservation or education program, as well as provide opportunities for the public to view 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. Currently, there are regulatory limitations that prevent section 104 permits and LOCs from being valid longer than 5 years (§§ 216.35 and 216.45, respectively), with the provision for 1-year extensions (§§ 216.39 and 216.45, respectively). This rule removes the 5-year regulatory limitation on the duration of section 104 permits and LOCs. This will allow NMFS to issue section 104 permits and LOCs for longer than 5 years, as appropriate. Each permit will have an expiration date, tailored to the specific activities proposed by the applicant, which will 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. Having issued MMPA permits since 1972, NMFS has a better understanding of marine mammal research and the effects of that research than when the 5-year restriction was promulgated in 1996. Based on decades of experience with the issuance of these permits and the activities conducted pursuant to them, NMFS believes a change is warranted to allow section 104 permits with durations greater than 5 years, in certain circumstances, as discussed below. As described in our comment responses below, NMFS routinely receives feedback from permit holders about the burden of the permit application process. Seventy-five percent of comments received in support of NMFS' proposed rule referenced the burden of the permit application process. An important benefit of removing the 5-year restriction on permits is 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 will allow NMFS to issue joint MMPA-ESA permits with terms of longer than 5 years, if warranted. Since 2017, NMFS has been issuing 10-year ESA permits for scientific research and enhancement on species such as sawfish, sea turtles, and sturgeon, when such duration is warranted. NMFS will now be able to issue longer duration permits, if warranted, involving marine mammals, improving consistency and efficiency. This rule provides greater flexibility and efficiency to permit and LOC applicants and the agency. Removing the limit on section 104 permit durations decreases how often researchers need to apply for a permit, thus decreasing the amount of time and effort required in reapplying to continue their research. As shown below, decades of permit data show that researc ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 68k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━