Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22345

recordkeeping requirements, Volatile

organic compounds.

40 CFR Part 81

Air pollution control.

Authority: 42 U.S.C. 7401–7671q.

Dated: April 21, 1995.

Valdas V. Adamkus,

Regional Administrator.

[FR Doc. 95–11035 Filed 5–4–95; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric

Administration

50 CFR Part 216

[Docket No. 950410098–5098–01; I.D.

030395A]

RIN 0648–AH19

Taking and Importing of Marine

Mammals; Deterrence Regulations and

Guidelines

AGENCY: National Marine Fisheries

Service (NMFS), National Oceanic and

Atmospheric Administration (NOAA),

Commerce.

ACTION: Proposed rule; request for

comments.

SUMMARY: The Marine Mammal

Protection Act (MMPA) Amendments of

1994 (the Amendments) provided new

authority to citizens of the United States

to deter marine mammals from:

Damaging fishing gear and catch;

damaging private property; endangering

public safety; or damaging public

property. The Amendments require

NMFS to publish a list of guidelines for

use in safely deterring marine mammals

and to prohibit deterrence measures that

have a significant adverse impact on

marine mammals. This proposed rule

sets forth preliminary versions of the

guidelines and prohibitions, and seeks

public comment upon which to refine

them.

DATES: Comments must be received no

later than July 5, 1995.

ADDRESSES: Written comments on the

proposed rule should be addressed to

Dr. William W. Fox, Jr., Director, Office

of Protected Resources, National Marine

Fisheries Service, 1315 East-West

Highway, Silver Spring, MD 20910–

3226. A copy of the Environmental

Assessment (EA) and list of experts may

be obtained by writing to this address or

by telephoning one of the contacts listed

below.

FOR FURTHER INFORMATION CONTACT: Tom

Eagle or Ken Hollingshead Office of

Protected Resources at (301) 713–2322;

Doug Beach, Northeast Regional Office

at (508) 281–9254; Jeff Brown, Southeast

Regional Office at (813) 893–3366; Irma

Lagomarsino, Southwest Regional Office

at (310) 980–4020; Joe Scordino,

Northwest Regional Office at (206) 526–

6143; or Steve Zimmerman, Alaska

Regional Office at (907) 586–7510.

SUPPLEMENTARY INFORMATION:

Background

The 1994 Amendments to the MMPA

amended section 101(a)(4) to authorize

fishers to deter marine mammals from

damaging fishing gear or catch, property

owners to deter marine mammals from

damaging property, government officials

to deter marine mammals from

damaging public property, and anyone

to deter marine mammals from

endangering personal safety, so long as

such acts of deterrence do not result in

the serious injury or mortality of a

marine mammal. Section 101(a)(4) of

the MMPA directs the NMFS to develop

and publish guidelines for use in safely

deterring marine mammals and to

prohibit deterrence measures

determined to have a significant adverse

effect on the animals. Section

101(a)(4)(B) directs NMFS to

recommend specific measures which

may be used to nonlethally deter marine

mammals listed as endangered or

threatened under the Endangered

Species Act of 1973 (ESA). Such

measures must be consistent with the

provisions of the ESA. Actions to deter

marine mammals consistent with such

guidelines or specific measures would

not be a violation of the MMPA.

The guidelines and prohibitions of

this proposed rule would apply only

with respect to marine mammal species

which are not listed under the ESA.

Specific recommended measures of

nonlethal deterrence for ESA-listed

species will be the subject of a separate

rule. In the meantime, the use of

deterrence measures upon marine

mammal species listed under the ESA

would remain prohibited.

Under the MMPA’s section 114

Interim Exemption Program,

commercial fishers were authorized, in

certain situations, to deter marine

mammals, to take them by harassment,

and to intentionally kill them to protect

fishing gear and catch. The 1994

Amendments to the MMPA changed

this by prohibiting intentional killing

and authorizing only acts of deterrence

that do not cause serious injury or

mortality to marine mammals.

Furthermore, intentional lethal taking is

now explicitly prohibited, except in the

defense of human life, by new sections

101(c) and 118(a)(5) (see 60 FR 6036,

February 1, 1995). Taken together, these

new provisions effect a marked change

in how some fisheries legally interact

with marine mammals. The deterrence

guidelines and prohibitions of this

proposed rule would facilitate that

change, allowing the use of effective

deterrence measures while limiting

injurious force.

New section 101(a)(4) of the MMPA

authorizes the intentional interaction of

private citizens with marine mammals.

Recreational fishers may now deter

marine mammals from damaging fishing

gear or catch; property owners or their

agents may now deter marine mammals

from damaging their property; and the

general public may now deter marine

mammals from endangering personal

safety, provided such deterrence does

not cause a marine mammal’s death or

serious injury. The proposed guidelines

and prohibited measures set forth

activities that are not likely to cause a

marine mammal death or serious injury

and specifically prohibit activities

determined, using the best scientific

information available, to have a

significant adverse effect on marine

mammals. Actions by the public to deter

non-ESA listed marine mammals

consistent with such guidelines would

not be a violation of the MMPA.

Because Federal, state, and local

government officials had the authority

to take marine mammals prior to the

1994 MMPA Amendments if doing so

was for the protection or welfare of the

animals or for the protection of the

public health and welfare, and, because

regulations governing such takings,

which take into account the special

training and experience levels of such

officials, are already in place at 50 CFR

216.22, the proposed guidelines and

prohibitions would not apply to acts of

deterrence by government officials.

Guidelines

The proposed guidelines for use in

safely deterring marine mammals would

provide information on acceptable types

of deterrence actions. The proposed

guidelines incorporate caution and

restraint in their deterrence methods

and should minimize marine mammal

injuries, if followed. The broad

application of these proposed guidelines

to a wide range of marine mammal

species, interaction situations, and

highly variable marine mammal

behavioral reactions requires that the

guidelines be general. They would give

direction to ensure that deterrence

actions do not result in the serious

injury or death of a marine mammal.

‘‘Passive’’ deterrence measures, those

that prevent a marine mammal from

gaining access to property, people, or
22346 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

1Complete bibliographic information available in

the Environmental Assessment and provided upon

request. (See ADDRESSES.)

fishing gear or catch, would be

acceptable. Predator nets, rigid fencing,

or other fixed barriers could be placed

to exclude marine mammals from the

immediate area of the subject property,

persons, or fishing gear or catch. Such

‘‘passive’’ deterrence devices could be

used, provided they do not increase the

risk of entanglement or serious injury or

death of a marine mammal.

‘‘Preventive’’ deterrence measures,

those taken to dissuade a marine

mammal from beginning to interact with

property, people, or fishing gear or

catch, would also be acceptable. For

example, underwater acoustic devices

that generate sounds known to be

annoying to marine mammals could be

used, as could certain light explosives to

startle pinnipeds and to disrupt their

approaches to property, people, or

fishing gear or catch. Boat hazing

(patrolling a net or an area in a small

boat and deterring marine mammals

with boat noise or by blocking their

approach at the surface) could be used

provided it did not result in the serious

injury or death of a marine mammal.

Some ‘‘reactive’’ deterrents, those

active measures taken with the intent of

stopping a dangerous or damaging

interaction, also would be acceptable.

‘‘Reactive’’ measures may require the

most assertive deterrent actions. Some

examples of generally acceptable

reactive measures that could be used

without causing an animal serious

injury or death are prodding a marine

mammal with blunt poles, pushing or

herding an animal with plywood or

canvas, or spraying water at an animal.

Noisemakers and, for seals and sea

lions, some light explosives, could also

be used.

Four additional instructions would

aid in the proper use of active measures

in preventive or reactive situations. Acts

of deterrence should not: (1) Result in

a separation of a female marine mammal

from its unweaned offspring; (2) break

the skin of a marine mammal; (3) be

directed at the head or eyes of a marine

mammal; or (4) be used on pinnipeds

hauled out on unimproved private

property (i.e. a rock, ledge, or beach).

The deterrence measures described as

examples above should be used with

great caution. Any act of deterrence—

including the example measures—that

results in the serious injury or death of

a marine mammal would be

unacceptable and would violate the

MMPA. Also, the above lists of

examples should not be considered

exhaustive. Any action that is not

specifically prohibited and is consistent

with the guidelines could be taken to

deter marine mammals, so long as the

action does not result in the serious

injury or death of a marine mammal.

Prohibitions

Section 101(a)(4)(C) authorizes NMFS

to prohibit such forms of deterrence that

it determines, using the best scientific

information available, after notice and

opportunity for public comment, to

have a significant adverse effect on

marine mammals. NMFS proposes to

prohibit the use of firearms or other

devices that propel injurious projectiles.

The use of explosives on cetaceans also

would be prohibited, and only seal

bombs or lesser explosives could be

used for deterring pinnipeds. Seal

bombs are explosive pest control

devices (formerly designated by the

Department of Transportation as Class C

Pest Control Devices, now designated as

Explosive Pest Control Device 1.4E NA–

0412) in common use in some

commercial fisheries. Further, the

translocation of marine mammals—the

capture and removal to another site—

would be prohibited (except by Federal,

state, and local officials as authorized by

section 109(h) of the MMPA) as would

the use of any substance intended for

consumption by marine mammals.

Specific justifications for the proposed

prohibition of these deterrence

measures follow.

Firearms and Devices That Propel

Injurious Projectiles

NMFS proposes to prohibit from use

as a marine mammal deterrent any

firearm or any device used to propel an

object designed for injurious effect

including crossbows, spearguns,

bangsticks, archery gear, harpoons,

javelins, and spears. Firearms have been

used to lethally deter depredating

marine mammals in several fisheries; for

example, killer whales in the Alaskan

sablefish longline/setline fisheries,

California sea lions in the Oregon/

California salmon troll fishery, and

harbor seals and gray seals in the Gulf

of Maine salmon pen-aquaculture.

Devices that propel injurious projectiles

cannot generally be used for deterrence

without having a significant adverse

effect on the targeted marine mammals,

and would therefore by prohibited.

Explosives

Explosives have been used to herd

and deter marine mammals for at least

30 years. The most common explosives

that have been used are seal bombs,

which explode 5 to 8 meters below the

water’s surface, causing a pressure wave

that startles the targeted animal and

temporarily deters it from an area. In

1989, NMFS’ Southwest Fisheries

Science Center (SWFSC, 1990)1 studied

the potential for injury to dolphins from

seal bomb use in the tuna purse seine

fishery. The reports concluded that

all types of seal bombs now known to be

in use * * *are capable of inflicting slight to

moderately severe injury when detonated at

least within 0.5 m of a dolphin (Myrick et al.,

1990b).

The most potent devices of this type

could ‘‘cause additional dolphin

mortality when detonated at close

range.’’ (Myrick et al., 1990a).

Because of the known adverse effects

and the difficulties in effectually

modifying or regulating their use, seal

bombs were prohibited from use in the

eastern tropical Pacific yellowfin tuna

purse seine fishery (55 FR 11580, March

29, 1990). For the same reasons, NMFS

proposes to prohibit use of explosives

against cetaceans in deterrence

applications.

Numerous studies of deterrent

effectiveness of seal bombs on

pinnipeds have noted no apparent

physical injury to a pinniped. While

internal injuries and hearing loss would

not be apparent, the return of normal

seal and sea lion behavior and the

failure of seal bombs as permanent

deterrents indicate that the effect of the

explosives is not significantly adverse

(NMFS-Washington Department of

Wildlife (WDW), 1989; Geiger and

Jeffries, 1986; NMFS–WDW, 1994).

Available information also indicates

that the effects of seal bombs on other

species in the marine environment are

insignificant. Two reports attribute a

few fish mortalities to repeated use of

explosives in a small area (Myrick et al.,

1990a; NMFS–WDW, 1989). Explosives

that detonate above the water’s surface

could result in minor disruptions in the

behavior of birds and terrestrial species

but these effects are considered to be

negligible. Because there is no evidence

that seal bombs and light fireworks used

as deterrents present a significant

adverse effect to pinnipeds or their

environment, NMFS does not propose to

prohibit their use on pinnipeds.

Translocation

Translocation (the capture and

relocation), of wild marine mammals is

a risky task undertaken occasionally by

experts in animal stranding situations

and infrequently in the course of

research. Each phase of translocation—

the capture, detainment, transport, and

release—presents opportunity for

significant behavioral and physiological

injury to the animal. Therefore, NMFS
Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules 22347

2 In addition, the practice of feeding marine

mammals in the wild is prohibited by regulation (50

CFR 216.3).

proposes to prohibit translocation as a

method of deterrence.

Tainted Bait and Other Consumables

NMFS proposes to prohibit the use of

tainted bait, poisons, or any other object

intended for consumption by a marine

mammal for the purpose of deterrence.

The practice of taste aversion involves

placing substances in bait fish to induce

physical discomfort when it is

consumed. Even for scientists and

wildlife management professionals,

control of dosage amounts is difficult to

manage, and attempts by the general

public would likely involve an injurious

amount being ingested, causing a

significant adverse effect. The tainted

vomitus and excrement of marine

mammals could also have some impact

on the food web. Moreover, non-target

species could not be kept from ingesting

the substances. For these reasons,

substances intended for consumption by

a marine mammal would be prohibited

as a method of marine mammal

deterrence 2.

Consultation

Section 101(a)(4) of the MMPA

requires NMFS to consult with

appropriate experts on the

implementation of the deterrence

provisions. NMFS has compiled a list of

individuals believed to have experience

and knowledge of interactions with

marine mammals and/or the use of

deterrence devices. These individuals

have been sent a copy of this proposed

rule and invited by NMFS to submit

comments on this proposed rule. The

list of experts is available upon request

(see ADDRESSES).

National Environmental Policy Act

The Assistant Administrator for

Fisheries, NOAA (AA) has determined,

based upon an EA prepared under the

National Environmental Policy Act that

implementation of these guidelines and

prohibitions would not have a

significant impact on the human

environment. As a result of this

determination, an environmental impact

statement is not required. A copy of the

EA is available upon request (see

ADDRESSES).

Classification

This action has been determined to be

not significant for purposes of E.O.

12866. In addition, the Assistant

General Counsel for Legislation and

Regulation of the Department of

Commerce certified to the Small

Business Administration that this

proposed rule, if adopted, would not

have a significant economic impact on

a substantial number of small entities as

defined under the Regulatory Flexibility

Act. Although some small waterfront

and water-related businesses may be

impacted by this rule, any economic

impacts that accrue are expected to be

positive since the rule, if implemented,

will authorize property owners to

legally take certain non-lethal measures

against marine mammals in order to

protect either private property,

themselves or their customers.

This proposed rule does not contain

policies with federalism implications

sufficient to warrant preparation of a

federalism assessment under E.O.

12612.

List of Subjects in 50 CFR Part 216

Administrative practice and

procedure, Imports, Indians, Marine

mammals, Penalties, Reporting and

recordkeeping requirements,

Transportation.

Dated: April 28, 1995.

Gary Matlock,

Program Management Officer, National

Marine Fisheries Service.

For the reasons set out 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

1. The authority citation for part 216

continues to read as follows:

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

otherwise noted.

2. In subpart C, § 216.29 is added to

read as follows:

§ 216.29 Marine mammal deterrence.

(a) Definitions. For the purposes of

this paragraph, ‘‘catch’’ means an

aquatic species that is attached, hooked,

ensnared, netted or otherwise under the

control of the owner or operator of that

fishing gear.

(b) Deterrence measure authorization.

(1) Except as provided in paragraph (d)

of this section, measures consistent with

the general guidelines in paragraph (c)

of this section, may be taken:

(i) By the owner of fishing gear or

catch, either commercial or recreational,

or an employee or agent of such owner

to deter a marine mammal (other than

species listed as endangered or

threatened under the Endangered

Species Act) from damaging gear or

catch so long as such measures do not

result in the death or serious injury of

a marine mammal.

(ii) By the owner of other private

property, or an agent, bailee, or

employee of such owner, to deter a

marine mammal (other than species

listed as endangered or threatened

under the Endangered Species Act) from

damaging private property so long as

such measures do not result in the death

or serious injury of a marine mammal.

(iii) By any person to deter a marine

mammal from endangering personal

safety so long as such measures do not

result in the death or serious injury of

a marine mammal. Furthermore, it shall

not be a violation of the Act to take a

marine mammal, even lethally, if such

taking is imminently necessary in selfdefense or to save the life of a person

in immediate danger, provided such

taking is reported to the Assistant

Administrator within 48 hours.

(2) Federal, state or local government

officials and employees may, consistent

with § 216.22 of this chapter, deter a

marine mammal from damaging public

or private property.

(c) Guidelines for safe deterrence. The

following measures are acceptable for

the deterrence of marine mammals.

(1) Passive deterrence measures that

preclude a marine mammal from

accessing or interacting with persons,

property, or fishing gear or catch may be

used in the immediate vicinity of those

persons, property, or fishing gear or

catch that is to be protected. Nets,

fences, or other types of physical

barriers may be used provided the

potential for marine mammals to

become entangled is not increased.

(2) Active deterrence measures

(including both ‘‘preventive’’ and

‘‘reactive’’ deterrence measures) that

dissuade a marine mammal from

interacting with persons, property,

fishing gear or catch or that cause a

marine mammal to cease its interaction

with persons, property, or fishing gear

or catch should not:

(i) Separate a female and its offspring;

(ii) Break the skin of an animal;

(iii) Be directed at the head or eyes of

an animal; or

(iv) Be used on pinnipeds hauled out

on unimproved private property. Active

deterrence measures that may be used

include, but are not limited to,

mechanical or electrical noisemakers,

water sprayed from a hose, blunt objects

to prod animals, large shielding objects

(wood, metal or fabric) to herd animals,

and hazing actions by boat operators.

(d) Prohibited deterrence measures.

The following forms of deterrence are

prohibited from use for the deterrence of

marine mammals:

(1) Use of any firearm, or other device

used to propel an object resulting in, or

possible to result in, injury including,

without limitation, crossbows,
22348 Federal Register / Vol. 60, No. 87 / Friday, May 5, 1995 / Proposed Rules

spearguns, bangsticks, archery gear,

harpoons, javelins, and spears;

(2) Use of any explosive device for use

on cetaceans (dolphins and whales), and

any device of explosive power greater

than that of a seal bomb (USDOT

Explosive Pest Control Device 1.4E NA–

0412, formerly Class C) for use on

pinnipeds (seals and sea lions);

(3) Translocation of any marine

mammal;

(4) Use of any tainted bait, poison, or

any other object or substance intended

for consumption by a marine mammal.

(e) Acceptable measures for

deterrence of ESA-listed species

[Reserved].

[FR Doc. 95–11138 Filed 5–4–95; 8:45 am]

BILLING CODE 3510–22–F