SUPPLEMENTARY INFORMATION:

The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.), and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

The applicant proposes to film humpback whales and Hawaiian spinner dolphins in the waters off the coasts of Maui and Hawaii-Kona for a natural history documentary on the variety and diversity of the Hawaiian ecosystems. The applicant would film and observe up to 400 humpback whales and 1200 spinner dolphins annually topside from a vessel, using an unmanned aircraft system (UAS) or underwater by diving. Up to 250 short-finned pilot whales ( Globicephala macrorhynchus) and 400 bottlenose dolphins ( Tursiops truncatus) annually may be harassed and opportunistically filmed if in the vicinity of the target species. The permit would be valid from February 2023 through December 2024.

It has come to the agency's attention that the 2016 interim final humpback approach rule (50 CFR 216.19; 81 FR 62010, September 8, 2016) does not explicitly exempt permits issued under section 104(c)(6) of the MMPA from its prohibitions. It is not the agency's intent to preclude the issuance of permits or authorizations consistent with the requirements of the MMPA. We interpret the rule to allow issuance of these permits. Consistent with this interpretation, it has been our practice to continue to issue section 104(c)(6) permits that are in compliance with the MMPA's requirements and our review procedures. However, to eliminate any potential ambiguity, we intend to revise the rule to explicitly clarify that photography permits issued under section 104(c)(6) of the MMPA are exempt from the prohibitions on approach.

In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

Concurrent with the publication of this notice in the Federal Register , NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

87 FR 65191