[Federal Register Volume 60, Number 87 (Friday, May 5, 1995)]
[Proposed Rules]
[Pages 22345-22348]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11138]



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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.

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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 [[Page 22346]] 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)<SUP>1 studied the potential for injury to dolphins from 
seal bomb use in the tuna purse seine fishery. The reports concluded 
that

    \1\Complete bibliographic information available in the 
Environmental Assessment and provided upon request. (See ADDRESSES.)

    all types of seal bombs now known to be in use ***are capable of 
inflicting slight to moderately severe injury when detonated at 
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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 [[Page 22347]] 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<SUP>2.

    \2\ In addition, the practice of feeding marine mammals in the 
wild is prohibited by regulation (50 CFR 216.3).
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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, Sec. 216.29 is added to read as follows:


Sec. 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 self-defense 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 Sec. 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, [[Page 22348]] 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]
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