Proposed Rule2024-09258
Proposed Rule To Modify the Duration of Certain Permits and Letters of Confirmation Under the Marine Mammal Protection Act
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Published
May 2, 2024
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 86 (Thursday, May 2, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/docket/NOAA-NMFS-2024-0054">https://www.regulations.gov/docket/NOAA-NMFS-2024-0054</a>. You may
submit comments on this document, identified by NOAA-NMFS-2024-0054, by
any of the following methods:
<bullet> Electronic Submission: Submit all electronic public
comments via the Federal e-Rulemaking Portal. Visit <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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.
<bullet> 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
<a href="https://www.regulations.gov">https://www.regulations.gov</a> 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:
<bullet> scientific research (MMPA section 104 (c)(3));
<bullet> enhancing the survival or recovery of the species or stock
(MMPA section 104 (c)(4));
<bullet> public display (MMPA section 104 (c)(2));
<bullet> commercial or educational photography (MMPA section
104(c)(6)); and
<bullet> 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:
<bullet> humane and with no unnecessary risks;
<bullet> consistent with regulatory restrictions;
<bullet> consistent with the purposes and policies of the ESA (if
threatened or endangered species are involved);
<bullet> not likely to have a significant adverse impact on the
species or stock;
<bullet> conducted by personnel with expertise and adequate
facilities and resources;
<bullet> conducted by personnel with adequate resources for marine
mammals held captive or transported; and
<bullet> 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
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