Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 100393 

1 47 CFR 73.618(a). 

operating on channel 35. The Petitioners 

request amendment of the Table of TV 

Allotments to substitute channel 11 for 

channel 35 and channel 35 for channel 

36, respectively. The Petitioners filed 

comments in support of the Petition, as 

required by the Commission’s rules 

(rules), reaffirming their interest in the 

proposed channel substitutions and that 

they will promptly file applications 

seeking authorizations on channels 11 

and 35. 

DATES: Effective December 12, 2024. 

FOR FURTHER INFORMATION CONTACT: 

Joyce Bernstein, Media Bureau, at 

Joyce.Bernstein@fcc.gov. 

SUPPLEMENTARY INFORMATION: The 

proposed rule was published at 89 FR 

64851 on August 8, 2024. The 

Petitioners filed comments in support of 

the petition reaffirming their 

commitment to apply for channels 11 

and 35. 

The Bureau believes the public 

interest would be served by substituting 

channel 11 for channel 35 for KJTV–TV 

and channel 35 for channel 36 for 

KCBD. Gray previously requested the 

substitution of channel 36 for channels 

11 and the Bureau granted the request. 

Accordingly, channel 11 is no longer 

allotted to Lubbock in the Table. Gray 

was also granted a construction permit 

to construct a facility on channel 36 at 

Lubbock, but was unable complete 

construction of the channel facility by 

the expiration date. According to the 

Petitioners, KJTV–TV’s channel 35 tube 

transmitter is failing, replacement parts 

are not available, and the cost for 

SagamoreHill to replace the transmitter 

for KJTV–TV’s 1000 kW facility is 

prohibitively expensive. The 

Petitioners’ proposal will allow 

SagamoreHill to replace KJTV–TV’s 

failing equipment with the equipment 

(i.e., antenna, transmitter, etc.) currently 

used by KCBD on channel 11, which is 

in good operating condition. Because 

Gray had already planned to invest in a 

new 1000 kW transmitter for KCBD on 

channel 36, it has the funds necessary 

to replace KJTV–TV’s failing channel 35 

transmitter and operate KCBD on 

channel 35. There would be no 

predicted loss area on channel 35 when 

compared to KCBD’s previouslyauthorized channel 36 facility and the 

proposed channel 11 facility for KJTV– 

TV would result in no loss and instead 

provide additional service to 

approximately 8,000 persons. The 

Bureau finds that channel 11 can be 

substituted for channel 35 at Lubbock as 

proposed, in compliance with the 

principal community coverage 

requirements of section 73.618(a) of the 

rules,1 at coordinates 33°-32′-29.9′′ N 

and 101°-50′-13.6′′ W, and also meets 

the technical requirements set forth in 

section 73.622(a) of the rules. We also 

find that channel 35 can be substituted 

for channel 36 at Lubbock as proposed, 

in compliance with the principal 

community coverage requirements of 

section 73.618(a) of the rules, at 

coordinates 33°-30′-08.3′′ N and 101°- 

52′-21.3′′ W, and also meets the 

technical requirements set forth in 

section 73.622(a) of the rules. 

This is a synopsis of the 

Commission’s Report and Order, MB 

Docket No. 24–224; RM–11988; DA 24– 

1188, adopted and released on 

November 26, 2024. The full text of this 

document is available for download at 

https://www.fcc.gov/edocs. To request 

materials in accessible formats for 

people with disabilities (braille, large 

print, electronic files, audio format), 

send an email to fcc504@fcc.gov or call 

the Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13. In addition, 

therefore, it does not contain any 

proposed information collection burden 

‘‘for small business concerns with fewer 

than 25 employees,’’ pursuant to the 

Small Business Paperwork Relief Act of 

2002, Public Law 107–198, see 44 U.S.C. 

3506(c)(4). Provisions of the Regulatory 

Flexibility Act of 1980, 5 U.S.C. 601– 

612, do not apply to this proceeding. 

The Commission will send a copy of 

this Report and Order in a report to be 

sent to Congress and the Government 

Accountability Office pursuant to the 

Congressional Review Act, see 5 U.S.C. 

801(a)(1)(A). 

List of Subjects in 47 CFR Part 73 

Television. 

Federal Communications Commission. 

Thomas Horan, 

Chief of Staff, Media Bureau. 

Final Rule 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICE 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.622(j), amend the Table of 

TV Allotments, under Texas, by revising 

the entry for Lubbock to read as follows: 

§ 73.622 Digital television table of 

allotments. 

* * * * * 

(j) * * * 

Community Channel Nos. 

* * * * * 

Texas 

* * * * * 

Lubbock ......... 11, 16, *25, 27, 31, 35 

* * * * * 

[FR Doc. 2024–29049 Filed 12–11–24; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 216 

[Docket No. 241126–0301] 

RIN 0648–BK65 

Modification of 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: Final rule. 

SUMMARY: 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. 

DATES: This rule is effective on January 

13, 2025. 

FOR FURTHER INFORMATION CONTACT: Sara 

Young or Carrie Hubard, Office of 

Protected Resources, NMFS, (301) 427– 

8401. 

SUPPLEMENTARY INFORMATION: 


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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 (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 (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 that will result in take of ESAlisted species or for research that 

involves more than Level B harassment 

of 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 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 

(i.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 

(i.e., Level B) harassment. An example 

would be photographing bottlenose 

dolphins (Tursiops truncatus) 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. 

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. 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 


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Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 100395 

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 researchers 

tend to apply for multiple permits 

throughout their career. Lengthening 

permit duration where appropriate 

promotes efficiency and lessens the 

burden on our permit holders, while 

still providing the protections for 

marine mammals mandated by the 

MMPA. 

As noted above, most section 104 

permits are permits for scientific 

research, which results 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 enactment of the MMPA and 

continue to hold 13 permits today. The 

MMPA requires NMFS to conduct 

research to assess marine mammal 

populations, which typically requires 

scientific research permits. NMFS is 

also required to compile abundance and 

distribution data on marine mammals 

and publish the findings as Stock 

Assessment Reports. These long-term 

research efforts, some of which are 

mandated by the MMPA, are examples 

of ongoing projects where a longer 

duration permit may be warranted. 

Another example of a permit that may 

merit a longer time period is for 

permanently captive marine mammals 

maintained for the duration of their 

lives in academic facilities, zoos, and 

aquariums for research or enhancement 

purposes. Under this change in 

regulations, 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. However, if an applicant proposes 

activities that are considered novel or 

are likely to be controversial, a shorter 

permit duration may be warranted. 

The need for long-term research 

activities is expected to continue into 

the foreseeable future and permits or 

LOCs of longer than 5 years in duration 

may be appropriate in some instances. 

Regardless of the requested duration of 

research, all applications for permits or 

LOCs will include a proposed duration 

as well as a justification for this 

duration. All permits and LOCs issued 

will have definitive expiration dates. 

Because NMFS has been issuing 

permits for decades, the effects of 

specific permitted activities on marine 

mammals, including particular research 

techniques, are well known and 

documented. 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 

are often expected to be the same or 

similar. Historically, these section 104 

permits have not raised significant 

public concern, as described below. 

As required by statute, NMFS gives 

the public the opportunity to comment 

on all scientific research, enhancement, 

photography, and public display permit 

applications it processes, via notice in 

the Federal Register. Although NMFS 

receives infrequent input from the 

public, the agency takes all substantive 

public comments into consideration 

when making a decision on whether to 

grant a requested permit. All 

applications are evaluated to ensure the 

proposed activities are humane and that 

other required issuance criteria are met 

(see Implementation and Oversight 

section). 

Comments and Responses 

On May 2, 2024, NMFS published a 

proposed rule in the Federal Register 

and requested comments from the 

public (89 FR 35769). On May 3, 2024, 

NMFS received a request for a 60-day 

extension of the public comment period 

from the Animal Welfare Institute 

(AWI). On June 3, 2024, NMFS 

announced a 15-day extension of the 

public comment period (89 FR 47508). 

During the 45 days of public comment, 

NMFS received 23 comment 

submissions, including comments from 

the Marine Mammal Commission 

(MMC), state, academic, and non-profit 

researchers, non-governmental 

organizations, and private citizens. All 

comments can be found at: https://

www.regulations.gov/document/NOAANMFS-2024-0054-0001. 

Twenty of the comments received 

expressed support for NMFS’ proposed 

action. Commenters stated that the 

proposed change is positive and will 

improve efficiency in the permitting 

process. The majority of commenters 

said that the changes will decrease the 

burden on researchers, who must take 

time away from their research to reapply 

for a permit every 5 years. Some 

commenters, including permit holders 

with long-term experience applying for 

permits, used words such as 

‘‘cumbersome’’ when describing the 

permit application process. Multiple 

researchers stated that the permit 

application process interferes with their 

ability to conduct field research or to 

apply for the grants that fund their 

research. One researcher said that 

allowing longer duration permits will 

save their program many weeks or 

months of time. 

Multiple letters included comments 

on the expertise of the NMFS staff who 

review and process section 104 permits 

and LOCs, including several mentions 

of a thorough and organized application 

review process. Commenters expressed 

confidence in NMFS’ ability to make 

decisions about the appropriateness of a 

particular permit duration, saying that 

NMFS staff have the necessary 

experience and perspective to do so. 

Multiple comments stated that annual 

reports will continue to hold permit 

holders accountable and be a useful tool 

to track compliance and indicate if any 

changes are needed. 

Three commenters discussed the 

potential benefits of the proposed rule 

changes for permanently captive marine 

mammals held under scientific research 

or enhancement permits. These 

commenters mentioned that the current 

5-year permit limit is a ‘‘regulatory 

burden’’ that does not comport with the 


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100396 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 

potential lifespan of marine mammals. 

The Alliance for Marine Mammal Parks 

and Aquariums (AMMPA) 

recommended that NMFS consider a 

permit duration that lasts for the life of 

permanently captive animals and 

pointed out that the facilities 

conducting captive research or 

enhancement activities on nonreleasable marine mammals have agreed 

to cover potentially long-term, 

expensive medical care for the animals. 

The AMMPA and Association of Zoos 

and Aquariums supported NMFS’ effort 

for increased consistency between 

MMPA and ESA permits, but the 

AMMPA cautioned against assigning 

arbitrary time limits to permit durations. 

A comment submitted jointly from the 

Natural Science Collections Alliance 

and the Society for the Preservation of 

Natural History represents another type 

of permit holder, those curating 

scientific collections of marine mammal 

specimens. Their letter points out that, 

currently, natural history collections 

must re-apply every 5 years for a new 

permit to import, export, or receive 

parts even though, typically, there are 

no changes to research techniques, 

impacts to live animals, or activities that 

could negatively affect wild 

populations. The comment states that a 

longer permit duration could ‘‘support 

the longstanding role of collections as 

stable repositories and save scientific 

and administrative effort both for 

museum collections staff and for NOAA, 

without negatively impacting the 

important function that these permits 

serve in marine mammal protection.’’ 

Four commenters stated they support 

changing the MMPA permit durations to 

be in alignment with the ESA permit 

durations. As noted above, marine 

mammals listed under the ESA may also 

require permitting under ESA section 

10(a)(1)(A) for scientific research or 

enhancement activities. The ESA and its 

applicable regulations do not limit the 

duration of such permits. 

The MMC comment letter expressed 

general support of NMFS’ proposed 

action but provided several comments 

about the implementation of the rule, 

which are addressed below. 

Three comment letters explicitly 

disagreed with NMFS’ proposal to 

remove the duration limit on section 

104 permits and LOCs. Two of these 

comments did not contain substantive 

information and expressed general 

opposition to NMFS’ proposed rule. The 

third comment letter, from AWI, 

contained substantive comments; 

summaries of the MMC and AWI’s 

comments and NMFS’ responses are 

provided below. 

Comment 1: The MMC recommended 

that NMFS develop and consistently 

apply objective criteria for determining 

whether a longer duration permit or 

LOC is ‘‘justified and appropriate’’ and 

clearly communicate those criteria to 

permit holders and applicants. The 

MMC commented that clear criteria 

specifying when permit holders are 

eligible for a longer duration permit will 

(1) ensure consistency in duration 

determinations, (2) allow researchers to 

know whether their experience and 

proposed methods meet the criteria for 

a longer duration, and (3) improve 

reviewers’ ability to assess whether a 

longer duration is warranted. 

Response 1: As stated in the preamble 

to the proposed rule, in addition to 

consideration of the permit issuance 

criteria at § 216.34, NMFS will also 

consider whether the applicant has 

previously held a permit, and if so, 

whether they have successfully 

achieved their objectives. If an applicant 

proposes activities that are considered 

novel or are likely to be controversial, 

a shorter permit duration may be 

warranted. Regardless of the requested 

duration, every application for a permit 

or LOC will be required to include 

justification for the requested duration. 

NMFS will update the permit and LOC 

application instructions to include this 

requirement. NMFS will take into 

consideration the requested duration of 

the permit when determining if the 

applicant has met the applicable 

statutory and regulatory issuance 

criteria and restrictions (see 

Implementation and Oversight section). 

NMFS will further consider all 

comments received on a proposed 

permit application, including the 

proposed duration, prior to making a 

decision about permit issuance (except 

LOCs, which do not require a public 

comment period). 

Comment 2: The MMC recommended 

that before this rule is finalized, NMFS 

should prioritize finalizing its draft of 

standard methods for marine mammal 

research (in the context of scientific 

research permits). The MMC also 

requested that NMFS provide the MMC 

with a timeline for when the standard 

methods will be available for review. 

Response 2: At this time, NMFS has 

prioritized finalizing this rule because a 

proposed rule has already been 

published. There is greater potential for 

permitting efficiencies from finalizing 

this rule than halting the rulemaking to 

pursue standard methods. The standard 

methods framework is in a preliminary 

drafting phase and is not yet ready for 

public review and comment. While 

NMFS will continue to develop 

standard methods, the standard 

methods initiative is not linked to the 

implementation of permit duration 

regulation changes. NMFS will keep the 

MMC, marine mammal researchers (i.e., 

permit holders), and the public apprised 

of the status of the marine mammal 

standard methods. 

Comment 3: The MMC emphasized 

that an accurate and complete 

application is essential for reviewers to 

determine whether the proposed 

duration is appropriate and justified. 

The MMC recommended that prior to 

publication of any application in the 

Federal Register, NMFS staff review 

each application in light of the 

applicable application instructions to 

ensure that all required information has 

been included, is consistent with 

NMFS’s policies, and has been reviewed 

and deemed sufficient by relevant 

internal experts. 

Response 3: NMFS reviews 

applications to ensure they meet the 

requirements of our application 

instructions, derived from the 

regulations for section 104 permit 

applications at 50 CFR 216.33 and the 

issuance criteria at § 216.34. NMFS’ 

process follows a protocol whereby, 

prior to sending an application to the 

MMC, external reviewers, or the public, 

NMFS conducts a comprehensive 

review involving our relevant internal 

experts. This process will remain the 

same when reviewing applications for 

longer duration permits. 

Comment 4: In anticipation of future 

changes to NMFS’ acoustic thresholds 

for marine mammals, the MMC 

recommended that NMFS include a 

general condition in all permits or 

permit amendments involving active 

acoustics requiring permit holders to 

base their estimation of Level A and B 

harassment zones on NMFS’s current 

thresholds at the time field work occurs 

rather than the thresholds in place when 

the permit was issued. More broadly, 

the MMC recommended that NMFS 

develop a plan to ensure that all future 

changes affecting research activities are 

communicated to longer duration 

permit holders and incorporated as 

permit conditions or through permit 

modifications. The MMC also 

recommended that NMFS should 

consider establishing new general 

conditions for all longer duration 

permits to address this issue and adopt 

outreach strategies to inform permit 

holders whenever relevant changes 

occur. 

Response 4: As any changes to NMFS’ 

acoustic thresholds have not been 

finalized, NMFS cannot speak to how 

any such changes to research permits 

would be implemented. Changes, such 

as new conditions, will be applicable to 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 100397 

all section 104 permits authorizing 

active acoustics, regardless of their 

duration. 

NMFS already has mechanisms in 

place, such as permit contact emails, 

our online application system, and web 

pages, to disseminate relevant 

information to permit holders. Through 

NMFS’ experience issuing permits for 

greater than 5 years for non-mammal 

ESA species, NMFS has found that the 

mechanisms currently in place are 

sufficient to manage longer duration 

permits and communicate necessary 

changes or updates to permit holders. 

NMFS will continue these efforts and 

consider additional outreach strategies 

for longer permits if the need arises. 

Comment 5: AWI disagreed with the 

assertion that NMFS’ prior experience 

issuing section 104 permits and LOCs 

justifies allowing permit durations of 

greater than 5 years. 

Response 5: Because NMFS has been 

issuing section 104 permits and LOCs 

for decades, the effects of specific 

permitted activities on marine 

mammals, including particular research 

techniques, are well known and 

documented in the record. This allows 

NMFS to meaningfully assess whether a 

permit application, regardless of the 

applicant’s requested duration, meets 

the necessary issuance criteria under the 

MMPA, and whether the requested 

duration is appropriate for the activity 

proposed. This record is coupled with 

NMFS’ experience in issuing 

approximately 45 permits for greater 

than 5 years for non-mammal ESA-listed 

species since 2017. This history of ESA 

permit issuance for durations greater 

than 5 years demonstrates NMFS’ ability 

to manage issuance and oversight of 

longer term permits. NMFS’ review of 

incident and annual reports and use of 

adaptive management, for example 

through permit amendments, has 

ensured appropriate mitigation is 

incorporated into permits as warranted 

(see Agency Oversight section below). 

Comment 6: AWI does not view 

reapplying for permits every 5 years, 

even for established research projects, to 

be overly burdensome for permit 

holders or the agency. 

Response 6: As stated in the preamble 

to the proposed rule, the Paperwork 

Reduction Act (PRA) 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 will spend 

approximately $3,258 and 100 hours to 

apply for two consecutive 5-year 

research permits. By removing the 

duration limit for section 104 permits, 

the number of burden hours and costs 

to apply for a scientific research permit 

could be reduced, for example, to 

approximately $1,629 and 50 hours for 

a 10-year permit, if a permit of such 

duration were to be deemed 

appropriate. Additionally, 15 comments 

received on the proposed rule, 

including from permit holders 

experienced with the application 

process, referenced the significant 

burden of applying for section 104 

permits and LOCs. This is further 

reinforced by feedback received by 

NMFS during the course of permit 

processing as well as through the PRA 

process. 

The applications submitted by 

recurrent researchers every 5 years also 

creates a burden for the agency. 

Processing a section 104 permit takes 

approximately 6 months. NMFS 

processed an average of 40 section 104 

permits and LOCs annually over the last 

5 years. As NMFS has found with the 

issuance of longer duration ESA section 

10(a)(1)(A) permits, processing fewer 

permits annually allows additional 

focus on conservation and recovery, 

including compiling and summarizing 

information from permit annual reports 

for use by ESA section 7 biologists, ESA 

recovery coordinators, and managers. 

Comment 7: AWI commented that the 

5-year duration limit was established 

with a precautionary principle in mind, 

and with a primary goal of protecting 

marine mammal populations, which can 

decline precipitously without scientific 

detection. 

Response 7: The 1993 proposed rule 

stated that periodic review is needed 

and that there should not be indefinite 

permits for captive marine mammals. As 

AWI stated later in their letter, the goal 

of the MMPA is to protect marine 

mammals such that they can be 

maintained at optimum sustainable 

population (OSP). To determine if a 

population is at OSP and detect 

potentially precipitous declines, NMFS 

must periodically assess the status of 

the population, which is typically 

achieved through long-term population 

monitoring under research permits or 

LOCs. Permits with durations of longer 

than 5 years may facilitate this longterm population monitoring research 

and inform management decisions to 

achieve healthy marine mammal 

populations. 

The issuance of permits for longer 

than 5 years does not negate the ability 

to take a precautionary approach to 

permitting scientific research. Because 

NMFS has been issuing section 104 

permits and LOCs for decades, the 

effects of specific permitted activities on 

marine mammals, including particular 

research techniques, are well known 

and documented in the record. The 

effects of permitted marine mammal 

research are continually monitored by 

NMFS through management 

mechanisms built into the permit 

process, such as submission of annual 

reports and incident reports, which are 

available to the public through the 

Freedom of Information Act (FOIA). If, 

for example, there were sudden declines 

in marine mammal populations, NMFS 

retains the ability to modify permits to 

add conditions or otherwise amend a 

permit, as well as suspend or revoke 

permits. These actions can be taken at 

any time during a permit’s duration. 

Comment 8: AWI commented that a 5- 

year permit duration allows timely 

oversight of permit applicants who may 

be acting in bad faith, who violate 

permit conditions, or who provide 

misinformation on permit applications. 

AWI believes that all permit holders 

should be monitored closely and be 

required to reapply for permits on a 

reasonable schedule, where permit 

holders must clarify discrepancies 

between permit conditions and actual 

outcomes. AWI also commented that 

annual reports, which are not published 

in the Federal Register and require 

public initiative to review, are 

insufficient to ensure adequate 

transparency. If NMFS proceeds with 

the proposed rule, AWI commented that 

it will likely become more difficult for 

NMFS to meaningfully assess whether 

applicants are applying in good faith 

and ensure that the criteria continue to 

be satisfied throughout the duration of 

the permit. 

Response 8: NMFS will make its 

determination on permit issuance based 

on whether an application includes all 

of the required information and meets 

NMFS’ issuance criteria for conducting 

activities over the proposed duration of 

the permit. If a permit applicant 

requests a permit duration longer than 

5 years, NMFS will determine if the 

applicant has demonstrated they meet 

all of the issuance requirements for that 

proposed duration. Once a permit is 

issued, permit noncompliance 

constitutes a violation and is grounds 

for permit modification, suspension, or 

revocation, and for enforcement action. 

All instances of permit noncompliance 

are required to be reported to our office, 

which allows NMFS’ to continually 

track permit compliance. NMFS reviews 

annual and incident reports to ensure 

compliance with the permit as issued. 

Additionally, reports from cooperating 

Federal partners may be used to 

evaluate permit compliance. For 

example, in the case of permitted 

captive research and enhancement, 

NMFS requires facilities to be compliant 


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with the Animal Welfare Act and its 

regulations. Thus, the U.S. Department 

of Agriculture’s Animal and Plant 

Health Inspection Service’s reports may 

be evaluated to assess permit 

compliance. 

The frequency of reporting (e.g., 

annually) and the types of reports 

required will not change regardless of 

permit duration. AWI did not provide 

evidence to support the statement that 

annual reports are insufficient to ensure 

transparency; however, as stated above 

in Response 5, since 2017, NMFS has 

issued approximately 45 permits with 

durations greater than 5 years for nonmammal ESA-listed species. This 

demonstrates NMFS’ ability to manage 

issuance of longer-term permits. NMFS’ 

review of incident and annual reports 

and use of adaptive management, for 

example through permit amendments, 

has ensured appropriate mitigation is 

incorporated into permits as warranted 

(see Agency Oversight section below). 

These reports also allow NMFS to assess 

if permit holders are making results 

available to the scientific community in 

a timely manner, increasing 

transparency in research and 

enhancement activities. 

Comment 9: AWI is concerned about 

the agency potentially setting negative 

regulatory precedent, as NMFS stated in 

its 1993 proposed rule ‘‘an indefinite 

valid period for a permit authorizing the 

captive holding of marine mammals is 

unacceptable for a number of reasons’’ 

including the need for public review 

and comment. The 1993 proposed rule 

further detailed that periodic review of 

permits is necessary to ensure permit 

compliance and address any changing 

circumstances associated with the 

captive holding of marine mammals. 

AWI claimed that it is arbitrary and 

capricious for the agency to reverse 

course on its longstanding policy. 

Response 9: NMFS is not proposing 

indefinite periods for permits. As NMFS 

stated in the 2024 proposed rule, ‘‘each 

permit would have an expiration date, 

tailored to the specific activities 

proposed by the applicant, which would 

be subject to public comment. . . 

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.’’ 

MMPA section 104 (a)(2)(C) requires 

that permits specify ‘‘the period during 

which the permit is valid,’’ and 50 CFR 

216.33(d) requires that an application 

provides ‘‘the requested period of the 

permit,’’ which will include a specified 

expiration date. 

NMFS considers the process of 

evaluating permit compliance to be 

continuous, beginning with assessing 

the standing of an applicant when a 

permit application is submitted and 

continuing through processing of annual 

reports and incident reports when 

submitted. Since the 1993 proposed 

rule, NMFS has taken a more systematic 

approach to reporting, ensuring all 

applicants are required to provide 

answers to certain key questions. Permit 

holders can now submit annual reports 

online, making the process easier for 

them and also making it easier for 

NMFS to track timeliness of required 

reports. NMFS monitors active permits 

via reports to make sure permit holders 

are in compliance with permit terms 

and conditions and that the effects of 

the permitted activities are consistent 

with those described in NMFS’ analysis 

conducted for permit issuance. In 

addition to annual reports, permit 

holders are required to contact NMFS 

and submit incident reports within 2 

weeks if serious injury or mortality of 

protected species occurs (if not 

authorized) or reaches that specified in 

the permit; or, if authorized take is 

exceeded in any of the following ways: 

more animals are taken than allowed in 

the permit; animals are taken in a 

manner not authorized by this permit; 

or protected species other than those 

authorized by a permit are taken. In 

such cases, permit holders must stop 

permitted activities and request 

permission from NMFS to resume. Both 

annual reports and incident reports are 

available to the public through FOIA. 

As to AWI’s concerns about periodic 

public review, the public will continue 

to have an opportunity to comment on 

section 104 permit applications when a 

Notice of Receipt is published in the 

Federal Register. The public is notified 

of permit issuance via the Federal 

Register as well. Once a permit is 

issued, the reports submitted by permit 

holders are available to the public 

through FOIA. In addition to public 

review and comments when an 

application is in progress, the following 

will still constitute a major amendment 

according to 50 CFR 216.39(a)(1) and 

will be subject to the public comment 

process: any changes to (1) number and 

species of marine mammals; (2) the 

manner of taking, import, or export if it 

may result in an increased level of take 

or risk of adverse impact; (3) the 

location; and (4) the duration, if 

extending a permit for more than 12 

months. 

Comment 10: AWI commented that 

captures from the wild or import for 

public display are not always conducted 

immediately after the permit is issued, 

in some cases not for years after a 

permit has been issued. AWI 

commented that a duration of 5 years is 

most appropriate, as conditions in the 

wild and at a captive facility may 

change in that time period. AWI 

believes a new permit application and 

review are the most precautionary way 

to account for any such changes. 

Response 10: NMFS has not issued a 

permit for the direct capture of marine 

mammals from the wild for public 

display since 1988. Across 15 import 

permits for public display since 2010, 

the average time to import was 2.7 

years. Some permit holders cannot 

conduct their requested activity in any 

given year for various reasons (e.g., 

pandemic, logistics, funding). 

Authorized activities can only be 

conducted during the term of validity of 

a permit, which means the necessary 

analyses are conducted to meet the 

required issuance criteria for the 

requested time period. If, during the 

term of permit validity, circumstances 

change such that NMFS decides that 

action is warranted (e.g., if there is a 

sharp decline in the abundance of a 

population of wild marine mammals, or 

if a facility is no longer in compliance 

with the Animal Welfare Act), NMFS 

retains the ability to modify permits to 

add conditions or otherwise amend a 

permit, as well as suspend or revoke 

permits. Further, as described above in 

Response 9, the following will still 

constitute a major amendment 

according to 50 CFR 216.39(a)(1) and 

will be subject to the public comment 

process: any changes to (1) number and 

species of marine mammals; (2) the 

manner of taking, import, or export if it 

may result in an increased level of take 

or risk of adverse impact; (3) the 

location; and (4) the duration, if 

extending a permit for more than 12 

months. As NMFS stated in our 

proposed rule (89 FR 35769, May 2, 

2024), ‘‘each permit would have an 

expiration date, tailored to the specific 

activities proposed by the applicant, 

which would be subject to public 

comment.’’ NMFS would consider 

public comments on the proposed 

duration prior to issuing any permit, 

including permits for public display. 

Comment 11: AWI questioned why 

NMFS is proposing to change the 

duration of all section 104 permits and 

LOCs when 93 percent of NMFS’ 

current permits are scientific research 

permits. The other types of permits tend 

to be for singular or discrete activities, 

and a 5 year-duration limitation is more 

appropriate. 

Response 11: Removing the 5-year 

limitation on permit durations does not 

mean that all permits will be issued for 


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more than 5 years. Regardless of the 

requested duration, every application 

for a permit or LOC will be required to 

include justification for the requested 

duration. NMFS will update the permit 

and LOC application instructions to 

include this requirement. NMFS will 

take into consideration the requested 

duration of the permit when 

determining if the applicant has met the 

applicable statutory and regulatory 

issuance criteria and restrictions (see 

Implementation and Oversight section). 

NMFS will further consider all 

comments received on a proposed 

permit application, including the 

proposed duration, prior to a decision 

about permit issuance (except the LOCs, 

which do not require a public comment 

period). 

Comment 12: AWI commented that 

the proposed rule leaves too much to 

the discretion of the agency, stating that 

the duration of a permit should not be 

left to the discretion of individuals who 

may not know the history of a permit 

applicant. 

Response 12: Over the years, NMFS 

has created numerous internal resources 

to make the processing of permits and 

LOCs as objective as possible, as well as 

maintained the Federal records, which 

allow all analysts to access relevant past 

permit information. All issued permits 

are required to have a clear expiration 

date. Regardless of the requested 

duration, every application for a permit 

or LOC will be required to include 

justification for the requested duration. 

NMFS will update the permit and LOC 

application instructions to include this 

requirement. NMFS will consider all 

comments received on a proposed 

permit application including the 

proposed duration, prior to a decision 

about permit issuance (except LOCs, 

which do not require a public comment 

period). The duration will be proposed 

by the applicant, reviewed by NMFS, 

and provided to the public and expert 

reviewers for their review; it is not at 

the discretion of individual analysts but 

rather the product of a series of rigorous 

reviews and analyses to determine if the 

applicant has demonstrated they meet 

the applicable statutory and regulatory 

issuance criteria and restrictions for the 

duration proposed. NMFS’ Response 1 

above provides additional detail about 

the criteria that may be considered 

when evaluating an application’s 

requested duration in addition to the 

applicant’s justification. Additionally, 

analysts review the annual and incident 

reports of the most recent prior permit 

held by an applicant. Collectively, this 

information provides a history of the 

applicant for analysts, regardless of their 

tenure within the agency. The annual 

and incident reports are also available to 

the public through FOIA, which 

provides additional opportunity for 

public review of permitted and reported 

activities. 

Comment 13: AWI stated that with a 

5-year permit duration, the disposition 

of captive animals can be reassessed in 

a transparent manner within a time 

frame relevant to the lifespan of the 

species. AWI further stated that 

extending a permit ad infinitum could 

be used as a ‘‘cover’’ for public display 

of animals imported for research and/or 

improper post-research disposition of 

animals, and that a 5-year permit 

duration allows the issue to be 

periodically reviewed by the public and 

the scientific community. 

Response 13: As stated in Response 1 

above, if an applicant proposes 

activities that are considered novel or 

are likely to be controversial, which 

captive marine mammal permits can be, 

a shorter permit duration may be 

warranted. As stated in Response 9, 

NMFS is not proposing indefinite 

periods for any permits. As NMFS 

stated in the proposed rule, ‘‘each 

permit would have an expiration date, 

tailored to the specific activities 

proposed by the applicant, which would 

be subject to public comment . . . 

Regardless of the requested duration of 

the proposed activity, every application 

for a permit or authorization would 

include justification for the requested 

duration and all permits and 

authorizations issued would have 

expiration dates.’’ MMPA section 

104(a)(2)(C) requires that permits 

specify ‘‘the period during which the 

permit is valid,’’ and 50 CFR 216.33(d) 

requires that an application provides 

‘‘the requested period of the permit,’’ 

which will include a specified 

expiration date. Further, as stated in 

Response 11, NMFS will take into 

consideration the requested duration of 

the permit when determining if the 

applicant has met the applicable 

statutory and regulatory issuance 

criteria and restrictions (see 

Implementation and Oversight section). 

NMFS will further consider all 

comments received on a proposed 

permit application, including the 

proposed duration, prior to a decision 

about permit issuance. 

Comment 14: AWI commented that 

NMFS should periodically examine 

whether scientific research conducted 

under a research permit remains bona 

fide. NMFS shouldn’t assume that all 

longitudinal studies are bona fide. Longterm research projects have the potential 

to become duplicative or to produce 

results that are no longer likely to be 

accepted for publication in a refereed 

scientific journal. 

Response 14: NMFS does not assume 

longitudinal studies are bona fide. Bona 

fide scientific research is defined at 50 

CFR 216.3 as research on marine 

mammals by qualified personnel, the 

results of which are likely to be 

accepted for publication in a scientific 

journal, are likely to contribute to basic 

knowledge of marine mammal biology 

or ecology, or are likely to identify, 

evaluate, or resolve conservation 

problems. Bona fide determinations are 

supported by a number of factors, 

including but not limited to: (1) a permit 

applicant’s previously published 

research and history as a permitted 

researcher; (2) whether the proposed 

research is appropriately designed to 

meet the objectives; (3) whether the 

results of the proposed research are 

likely to qualify for publication; and (4) 

whether the proposed research will 

contribute to our knowledge of the 

species, or address conservation 

problems over a given time period. 

Evaluation of annual reports informs 

NMFS if the research conducted under 

the permit remains bona fide. Annual 

reports allow NMFS to assess if permit 

holders are making results available to 

the scientific community in a timely 

manner, such as journal publications 

and presentations. NMFS’ application 

instructions ask researchers to describe 

how their study is different from, builds 

upon, or duplicates past research. 

Duplicative research may be warranted, 

for example, when validating previous 

study results. Applicants are required to 

describe how they coordinate with other 

researchers to effectively manage 

research efforts and any potential 

impacts to the marine mammals in the 

area. 

Comment 15: AWI provided a 

hypothetical scenario in which a zoo 

bred a non-releasable animal that was 

precluded from breeding, resulting in a 

permit violation. AWI commented that 

requiring the permit holder to reapply 

for a new permit after 5 years will 

ensure the permit holder offers a 

justification—which will be assessed by 

the agency and outside reviewers, 

including outside scientists and 

members of the public—for the 

violation. 

Response 15: Permit holders are 

required to report all instances of permit 

noncompliance, as part of NMFS’ 

continual evaluation of permit 

compliance. Permit holders are required 

to contact NMFS and submit incident 

reports within 2 weeks if serious injury 

or mortality of protected species occurs 

(if not authorized) or reaches that 

specified in the permit; or, if authorized 


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take is exceeded in any of the following 

ways: more animals are taken than 

allowed in the permit; animals are taken 

in a manner not authorized by this 

permit; or protected species other than 

those authorized by a permit are taken. 

In such cases, permit holders must stop 

permitted activities, describe the 

incident and any future mitigation 

measures to prevent the incident from 

happening again, and request 

permission from NMFS to resume. 

NMFS can take action including 

modifying, suspending, or revoking the 

permit. In addition, the annual report 

requires permit holders to discuss any 

incidents, problems, or unexpected 

effects of their activities. 

Comment 16: AWI commented that 

most photography permits are issued for 

singular or discrete actions so no need 

seems to exist for altering the current 

regulations to allow permits greater than 

5 years in duration. AWI commented 

that if a permit holder for photography 

is unable to complete a permitted action 

before the 5-year permit duration 

expires, it is appropriate for the permit 

holder to reapply for a permit, as 

circumstances outlined in the original 

permit application may have changed. 

Response 16: Most photography 

permits are for periods of less than 5 

years, but there are instances where a 

project of greater than 5 years could be 

requested and justified. Whether a 

permit is ultimately issued for longer 

than 5 years will depend on the permit 

application, including the requested 

duration, and whether the applicant is 

able to meet the required issuance 

criteria for the proposed action. 

Removing the 5-year restriction does not 

prohibit NMFS from issuing permits for 

less than 5 years. 

Comment 17: AWI commented that if 

the process for applying for an LOC is 

already streamlined, it does not seem 

justifiable to remove the 5-year duration 

limitation as well. 

Response 17: The statute does not 

prohibit NMFS from implementing 

additional streamlining measures, 

provided the relevant issuance criteria 

are met. See also Response 16 above. 

Comment 18: AWI commented that 

they see no reason for consistency 

between the MMPA and ESA with 

regard to permit duration as they are 

different statutes with different 

standards and different goals. They 

commented that the MMPA seeks to 

maintain species at an ecologically 

relevant level, while the ESA seeks to 

recover species that have already 

declined to a dangerously low level. 

AWI commented that the existing 

regulations as described in NMFS’s final 

rule on 50 CFR parts 216 (MMPA) and 

222 (ESA) (61 FR 21926, May 10, 1996) 

are already consistent for marine 

mammals. Given the different purposes 

of the MMPA and the ESA, AWI does 

not believe further consistency is 

needed. 

Response 18: NMFS issues permits 

jointly under both statutes in the cases 

of marine mammals that are listed as 

endangered or threatened. Both statutes 

provide for the issuance of permits for 

the purposes of scientific research and 

enhancement; neither the ESA nor the 

agency’s implementing regulations limit 

the duration of those permits, even 

though they focus exclusively on 

species that are endangered or 

threatened and thus require heightened 

protection. Since 2017, NMFS has 

issued permits for scientific research of 

non-marine mammal ESA-listed species 

(e.g., sea turtles, sturgeon) for durations 

greater than 5 years. 

Comment 19: AWI commented that 

both the individual and cumulative 

effects of climate change—and the 

difficulty researchers face in monitoring 

marine mammals, which Congress 

explicitly recognized in the MMPA— 

mean that takes such as those 

authorized by section 104 should be 

reconsidered regularly enough for 

NMFS to recognize and respond to 

problematic trends in marine mammal 

populations. 

Response 19: NMFS acknowledges 

that climate change may have 

unanticipated effects on marine 

mammals and that long-term research is 

required to assess the effects to marine 

mammal populations (Gulland et al., 

2022; Orgeret et al., 2021; Sanderson & 

Alexander, 2020). The ability to issue 

permits for longer than 5 years does not 

negate NMFS’ ability to monitor the 

effects of the permitted activity and take 

action as warranted. As stated in 

Response 7, the effects of permitted 

marine mammal research are 

continually monitored by NMFS 

through management mechanisms built 

into the permit process, such as 

submission of annual reports and 

incident reports, which are available to 

the public through FOIA. 

If, for example, there are climatedriven changes to marine mammal 

populations that cause concern, NMFS 

retains the ability to modify permits to 

add conditions or otherwise amend a 

permit, as well as suspend or revoke 

permits. These actions can be taken at 

any time during a permit’s duration. 

Comment 20: AWI commented that if 

the agency does away with mandatory 

time limits for section 104 permits, 

those seeking to exploit marine 

mammals in other ways may push for 

adjustments to duration requirements 

for other types of permits. AWI also 

commented that even for purposes of 

national defense, a 7-year consecutive 

time limit cannot be exceeded when it 

comes to the permitted take of marine 

mammals, as outlined in MMPA section 

101(a)(5). 

Response 20: As noted above, NMFS 

is not ‘‘doing away’’ with time limits on 

permits. Every permit will have an 

expiration date. Furthermore, section 

104 is a distinct section of the MMPA 

with its own requirements, which do 

not include a specific maximum 

duration. As noted above, section 

104(a)(2)(C) requires only that permits 

specify ‘‘the period during which the 

permit is valid;’’ the statute does not 

specify a limit to permit duration for 

permits and LOCs issued under section 

104. 

Incidental take authorizations under 

MMPA section 101(a)(5) (16 U.S.C. 

1371(a)(5)), as cited by AWI, are distinct 

from section 104 permits, and contain a 

duration limit explicitly imposed by the 

statute. In fact, the plain language of the 

MMPA demonstrates that where 

Congress intended there to be a defined 

period, it explicitly provided one (e.g., 

MMPA sections 101(a)(5)(A) and (D)). 

These types of authorizations are not a 

part of this rulemaking. The 5-year 

limitation on section 104 permits, by 

contrast, was established by NMFS 30 

years ago via a rulemaking process. For 

the reasons provided in this final rule, 

the blanket 5-year limit is no longer an 

effective or efficient method of 

managing section 104 permits and 

LOCs. 

Implementation and Oversight 

Once this rule becomes effective, 

NMFS will begin accepting new 

applications for permits and LOCs that 

may propose durations of longer than 5 

years. Requiring new permit 

applications, rather than amendment 

requests, will allow the public to review 

the entirety of the proposed activity. 

This will also allow the agency to 

manage its workload and continue 

processing new permit applications as 

anticipated based on current permit 

expirations. 

Information Required in Applications 

Applications for section 104 permits 

and LOCs will be evaluated and 

processed in the same manner as they 

are now in accordance with 50 CFR part 

216. Applicants will still have to follow 

the Office of Management and Budget 

(OMB)-approved permit and LOC 

application instructions and include 

their proposed start and end dates, as 

well as a description of the frequency 

and seasonality of their proposed 


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activities in their application. Currently, 

applicants for section 104 permits and 

LOCs can request a time period of 5 

years or less. Under the changed 

regulations, applicants may request a 

permit duration longer than 5 years, 

which may be more appropriately 

aligned with a project’s goals rather than 

an arbitrary 5-year duration. Regardless 

of the requested duration, every 

application for a permit or LOC will be 

required to include justification for the 

requested duration. NMFS will update 

the permit and LOC application 

instructions to include this requirement. 

Opportunity for Public Comment 

This regulatory change will not 

remove the public’s opportunity to 

comment on permit applications and 

any major permit amendments. NMFS 

will 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 50 

CFR 216.33(d), respectively). These 

notices provide the public an 

opportunity to comment on the 

proposed permit duration for each 

application. NMFS will also continue to 

solicit comments from the MMC 

consistent with § 216.33(d)(2), and other 

relevant Federal and State agencies in 

accordance with § 216.33(d)(3), 

typically concurrent with the public 

comment period. NMFS will continue to 

consider all public and expert 

comments on a proposed permit 

application, including the proposed 

duration, prior to permit issuance. LOCs 

do not currently require a public 

comment period and that will not 

change. 

When this final rule becomes 

effective, NMFS will begin 

implementing the duration changes 

upon the receipt of new permit and LOC 

applications. Applicants must provide a 

justification for the proposed duration 

when they apply for a new permit or 

LOC. This process will ensure that the 

public is able to review and comment 

on permit applications with durations 

longer than 5 years. Currently active 

permits with durations of 5 years or less 

will not automatically be changed to 

longer durations; we will not be 

amending those permits to extend their 

duration other than issuance of minor 

amendments for extensions of 12 

months or less if justified (e.g., to allow 

activities to continue uninterrupted 

prior to obtaining a new permit). As 

stated above, we will consider permit 

durations of more than 5 years in new 

permit applications. See Amendments 

to Extend the Permit or LOC Duration 

below for additional information. 

Permit Issuance 

Issuing a longer term permit will 

require that the duration as proposed in 

a permit or LOC application 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 (except for LOCs, which do 

not require public comment), and meets 

all statutory and regulatory issuance 

criteria. All permits and LOCs issued 

will have expiration dates printed on 

the permit documentation. Despite 

removing the 5-year regulatory 

maximum duration, NMFS expects that 

there will continue to be projects for 

which a permit for a term 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 typically 

warrant a permit of short duration. 

Thus, the duration of the permit will be 

determined based on the specific project 

proposed and the justified duration of 

that project. 

To obtain a section 104 permit for 

scientific research or enhancement, 

applicants must meet certain statutory 

and regulatory issuance criteria. This 

includes, among other things, the 

regulatory issuance criteria at § 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 will still apply 

regardless of permit duration. 

In addition to the regulatory criteria 

above, NMFS will also consider whether 

the applicant has previously held a 

permit or LOC, 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 the 

Action), most permits issued under 

section 104 have not raised substantial 

public concern, and the impacts of most 

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 regulation change, permit 

and LOC holders will still be subject to 

agency oversight. For example, permit 

and LOC holders must submit annual 

reports as required by the regulations at 

§§ 216.38 and 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 maintains 

its authority for permit or LOC 

modification, suspension, or revocation. 

For example, NMFS may determine a 

permit modification is warranted to add 

permit conditions in response to 

information provided in annual or 

incident reports. 

The agency will continue to publish 

in the Federal Register notices of 

receipt of requests for major 

amendments to increase the number of 

animals, add species, add methods that 

will increase adverse impacts, and 

change locations, for a 30-day public 

comment period, and notices of 

issuance of all major amendments and 

minor amendments extending a permit 

or LOC up to 1 year. 

For any amendment to a permit or 

LOC, the agency will also reexamine the 

National Environmental Policy Act 

analysis based on information provided 

in the amendment request, taking into 

consideration information in annual and 

incident reports and in published 

literature. Likewise, if ESA-listed 

species are involved and the action is 

covered under an ESA section 7 


ddrumheller on DSK120RN23PROD with RULES1
100402 Federal Register / Vol. 89, No. 239 / Thursday, December 12, 2024 / Rules and Regulations 

1The 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. 

consultation and, for example, a new 

species is listed or critical habitat is 

designated, NMFS will 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 warrants 

a change to a permit or permits, NMFS 

retains the ability to amend permits to 

add conditions, such as mitigation 

measures to minimize impacts to 

protected species, as described in 

§ 216.36(b). 

Amendments To Extend the Permit or 

LOC Duration 

As mentioned above (see Opportunity 

for Public Comment) and consistent 

with current practice, permit and LOC 

holders may request a minor 

amendment to extend the duration of 

their permit up to 1 year, if justified. 

The regulations at 50 CFR 216.39 state 

that a major amendment may include an 

extension of a permit beyond 12 

months; however, NMFS typically 

issues extensions for 12 months or less. 

Classification 

Pursuant to the procedures 

established to implement E.O. 12866, 

the Office of Management and Budget 

has determined that this 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 

rule will 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 

are subject to the requirements in these 

regulations. The number of small 

governmental jurisdictions, small 

organizations, or small businesses 

affected is approximately less than 150 

entities total, and less than 35 

applicants annually (some of which 

submit multiple applications). The 

change in duration of permits will not 

affect the cost to these small entities, as 

it will require the same amount of time 

and resources to apply for a 5-year 

permit as it will to apply for a permit 

of a longer duration. Overall, this rule 

may reduce the costs to these entities by 

potentially spending 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 

will spend approximately $3,258 and 

100 hours to apply for two consecutive 

5-year research permits. By removing 

the duration limit for section 104 

permits, the number of burden hours 

and costs to apply for a scientific 

research permit could potentially be 

reduced to approximately $1,629 and 50 

hours for a 10-year permit, if issued. An 

applicant for an LOC will spend 

approximately 10 hours and $325.80 to 

complete a 5-year LOC application, 

which if issued for a longer period, will 

reduce that cost. Because of this, a 

regulatory flexibility analysis is not 

required, and none has been prepared. 

A person is not required to respond 

to, nor shall a person be subject to a 

penalty for failure to comply with an 

information collection subject to the 

requirements of the Paperwork 

Reduction Act (PRA) of 1995 unless the 

information collection has a currently 

valid OMB Control Number. This 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 and requesting justification 

for an applicant’s proposed permit 

duration. 

List of Subjects in 50 CFR Part 216 

Administrative practice and 

procedure, Exports, Imports, Marine 

mammals. 

Dated: December 4, 2024. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For reasons set forth in the preamble, 

NMFS amends 50 CFR part 216 as 

follows: 

PART 216—REGULATIONS 

GOVERNING THE TAKING AND 

IMPORTING OF MARINE MAMMALS 

■ 1. The authority citation for part 216 

continues to read as follows: 

Authority: 16 U.S.C. 1361 et seq. 

■ 2. In § 216.35, revise paragraph (b) to 

read as follows: 

§ 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 

§§ 216.36 and 216.39. 

* * * * * 

■ 3. In § 216.45, revise paragraphs 

(b)(2)(iv) and (d)(3) to read as follows: 

§ 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. 2024–28931 Filed 12–11–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[Docket No. 231221–0314; RTID 0648– 

XE527] 

Fisheries of the Northeastern United 

States; Atlantic Bluefish Fishery; 

Quota Transfer From New Jersey to 

North Carolina 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; quota transfer. 

SUMMARY: NMFS announces that the 

State of New Jersey is transferring a 

portion of their 2024 commercial 

bluefish quota to the State of North 

Carolina. This quota adjustment is 

necessary to comply with the Atlantic 

Bluefish Fishery Management Plan 

(FMP) quota transfer provisions. This 

announcement informs the public of the 

revised 2024 commercial bluefish 

quotas for New Jersey and North 

Carolina. 


ddrumheller on DSK120RN23PROD with RULES1