[Federal Register Volume 79, Number 241 (Tuesday, December 16, 2014)]
[Notices]
[Pages 74710-74711]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29394]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

RIN 0648-XD646


Notice of Intent To Issue Guidelines

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice, request for public comment.

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SUMMARY: The Marine Mammal Protection Act (MMPA) allows for persons to 
employ measures to deter marine mammals from damaging fishing gear and 
catch, damaging personal or public property, or endangering personal 
safety, as long as these measures do not result in death or serious 
injury of marine mammals. The MMPA also allows the Secretary of 
Commerce, through NOAA's National Marine Fisheries Service (NMFS), to 
develop national guidelines on safely deterring marine mammals under 
NOAA's jurisdiction (e.g., whales, dolphins, seals, and sea lions). To 
inform development of these national guidelines, NMFS requests input on 
which deterrents the public would like NMFS to evaluate and consider 
for approval. Any subsequent national guidelines for safely deterring 
marine mammals would then be released for public notice and comment as 
required by the MMPA. Such national guidelines would likely be tailored 
to each species group (pinnipeds, large cetaceans, and small cetaceans) 
as differences in physiology and behavior would affect whether a 
deterrent is appropriate for one or more species group. National 
guidelines would also address relevant implementation considerations. 
Deterrents could be considered ``passive'' or ``active'' in nature. 
Deterrents may include physical barriers, acoustic deterrent and 
harassment devices, visual repellents, boat hazing, noisemakers, and 
physical contact. For each deterrent device or technique submitted to 
NMFS for consideration and evaluation, NMFS requests information on the 
specifications (e.g., source and frequency levels, pulse rate, type of 
fencing, size of flags, etc.) for each deterrent or technique, which 
marine mammal species or species group (large cetaceans, small 
cetaceans, pinnipeds) would be deterred, how a deterrent would be 
employed (e.g., attached to fishing gear, launched some distance from a 
marine mammal), any evidence that the deterrent will not result in 
mortality or serious injury, and any other implementation 
considerations. This information will help NMFS determine which devices 
or techniques are appropriate for the development of guidelines and 
specific measures for safely deterring both non-ESA listed and ESA 
listed marine mammals.

DATES: Written comments from interested parties on the non-lethal 
deterrents for NMFS' consideration must be received at the appropriate 
address or fax number (see ADDRESSES) no later than 5 p.m. Eastern 
daylight time on January 15, 2015.

ADDRESSES: You may submit comments, identified by NOAA-NMFS-2014-0146, 
by any of the following methods during the 30-day comment period:
    <bullet> Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2014-0146 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
    <bullet> Mail: Submit written comments to Kristy Long, Office of 
Protected Resources, 7600 Sand Point Way NE., Building 4, Room 2122-4, 
Seattle, WA 98115.
    <bullet> Fax: 301-713-0376; Attn: Kristy Long.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Kristy Long (ph. 206-526-4792, email 
<a href="/cdn-cgi/l/email-protection#e3a8918a90979acdaf8c8d84a38d8c8282cd848c95"><span class="__cf_email__" data-cfemail="4a013823393e33640625242d0a24252b2b642d253c">[email protected]</span></a>).

SUPPLEMENTARY INFORMATION:

Background

    The deterrence provisions of the Marine Mammal Protection Act (16 
U.S.C. 1361 et seq.) provide an exception to otherwise prohibited acts, 
allowing the use of measures that may deter a marine mammal from, among 
other things, damaging private property or endangering personal safety, 
so long as those deterrents do not result in the death or serious 
injury of a marine mammal. NMFS has defined ``serious injury'' as any 
injury that will likely result in death (50 CFR 229.2) and has further 
interpreted that definition and developed a process to distinguish 
serious from non-serious injuries (www.nmfs.noaa.gov/pr/pdfs/serious_injury_policy.pdf).
    Specifically, MMPA section 101(a)(4)(A) allows for the owner of 
fishing gear or catch or private property, or an employee or agent of 
such owner, to deter marine mammals from damaging fishing gear and 
catch or private property, respectively. Additionally, it allows any 
person to deter a marine mammal from endangering personal safety and 
any government employee to deter a marine mammal from damaging public 
property, so long as such measures do not result in mortality or 
serious injury of a marine mammal.
    MMPA section 101(a)(4)(B) directs the Secretary of Commerce, 
through NMFS, to publish guidelines for safely deterring marine mammals 
and recommend specific measures to non-lethally deter marine mammals 
listed as endangered or threatened under the Endangered Species Act 
(ESA). Deterring marine mammals consistent with such guidelines or 
approved measures would not be a violation of the MMPA.
    MMPA section 101(a)(4)(C) provides for the prohibition of certain 
forms of deterrence if NMFS determines, using the best scientific 
information available, and subsequent to public comment, that the 
deterrence measure has a significant adverse effect on marine mammals.

Types of Deterrents

Passive Deterrents

    ``Passive'' deterrence measures are those that prevent marine 
mammals from gaining access to fishing gear, property, or people. The 
proper use of

[[Page 74711]]

these passive deterrence devices provides for human safety and does not 
increase the risk of death or serious injury of marine mammals. Such 
measures have been most commonly deployed for deterring pinnipeds and 
could include rigid fencing and other fixed barriers such as gates and 
fence skirting, closely spaced posts, and visual deterrents (e.g., 
flags, pinwheels, flashing lights). For small cetaceans, modifying 
fishing behavior to prevent interactions is another option. For example 
a fishing vessel could minimize the number of turns made while trawling 
and reduce tow times at night.

Active Deterrents

    ``Active'' deterrence measures introduce a stimulus into a marine 
mammal's environment to dissuade an animal from interacting with 
property, people, or fishing gear or catch or stopping a dangerous or 
damaging interaction. Examples of active measures include underwater 
acoustic devices (e.g., pingers, seal scarers, noisemakers such as 
horns or whistles) that generate sounds known to be annoying but not 
harmful to marine mammals, physical contact such as prodding a marine 
mammal with blunt poles, pushing or herding an animal, and spraying 
water at an animal, as well as, for seals and sea lions, some light 
explosives to induce a startle response.

Request for Public Comment

    Pursuant to MMPA section 101(a)(4)(B), NMFS intends to develop 
national guidelines for deterring marine mammals under NOAA's 
jurisdiction (see www.nmfs.noaa.gov/pr/species/mammals). NMFS is 
soliciting public input on which deterrents the public would like NMFS 
to evaluate and consider for approval through these national 
guidelines. For each device or technique submitted for consideration, 
NMFS requests any available information on the specifications for each 
deterrent, which marine mammal species or species group would be 
deterred, how a deterrent would be deployed, and any other 
implementation considerations. NMFS would also appreciate any details, 
if known, on the nature of the interaction for which deterrence 
measures are being sought or already employed.
    NMFS is not requesting that individuals undertake new research to 
inform this process. Further, please note that some devices or 
techniques may not be appropriate for use on certain species or in 
certain areas and may be subject to prohibition or permitting 
requirements under federal, state, or local ordinances.
    For each deterrent device or technique submitted, please include 
information on the following:
    <bullet> The intended species and/or species group (i.e., large 
cetaceans, small cetaceans, or pinnipeds) that could be deterred by a 
particular device or technique.
    <bullet> Details on the nature of the interaction that warrants 
deterrence, including, if known, the associated marine mammal behavior 
(e.g., depredation of bait or catch, bycatch, begging, damage to 
fishing gear or property) and location of the interaction (e.g., at 
sea, on land, on a dock, on private property).
    <bullet> A description of the device or technique, including all 
available manufacturer specifications of the device and photographs or 
graphics, if possible. For example, for acoustic deterrent or 
harassment devices, please include source level (e.g., decibel level 
(dB)), reference pressure (e.g., peak, root mean square (RMS)), 
frequency levels (in Hertz or kilohertz), pulse rates and duration, 
battery requirements, and recommended spacing. For example, one type of 
acoustic harassment device, a 10 kHz pinger, emits sound at 132 dB 
(<plus-minus> 4 dB) re 1 micropascal at 1 m, lasting 300 milliseconds 
(<plus-minus> 15 milliseconds), and repeating every 4 seconds (<plus-
minus> 0.2 seconds).
    <bullet> Reports, literature, or data from any field trials or 
pilot studies evaluating the device or technique, including any 
observed death or serious injury that resulted from using the device or 
technique.
    <bullet> Any other information relative to the potential risk that 
a specific device or technique may have in causing the death or serious 
injury of a marine mammal.
    <bullet> The manner in which the device or technique would be 
deployed. Specifically, details on how the deterrent would be attached 
to fishing gear (e.g., number of devices, distance between deterrents, 
etc.), launched at some distance, deployed on a dock or vessel, etc. 
For example, for acoustic pingers deployed to deter harbor porpoises 
from gillnets, a 10 kHz pinger would be attached at each end of a 
gillnet string and at the bridle of every net within a string of nets 
(every 300 ft (91.44 m)). For a physical barrier on private property 
intended to prevent pinnipeds from gaining access, the barrier should 
be made of galvanized metal to withstand the marine environment and 
block haul-out attempts, and the rungs should be spaced no more than 18 
inches (45.72 cm) apart.
    <bullet> Potential effects on other marine mammals, ESA-listed 
species, or the environment in the area where a deterrent would be 
used.
    <bullet> Any other implementation considerations that NMFS should 
consider.
    In summary, NMFS is soliciting input on which deterrents the public 
would like NMFS to evaluate and consider for approval through the 
development of national guidelines for safely deterring marine mammals. 
NMFS will consider these suggested deterrents and others, as 
appropriate, for inclusion in the guidelines and will subsequently 
publish any such guidelines developed as a part of this process in the 
Federal Register for public notice and comment, as required by MMPA 
section 101(a)(4)(B).

    Dated: December 11, 2014.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2014-29394 Filed 12-15-14; 8:45 am]
BILLING CODE 3510-22-P


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