Guidelines for Safely Deterring Marine Mammals, 53763-53785 [2020-18718]

Download as PDF Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules 252.245–7002 Reporting Loss of Government Property. * * * * * (b) * * * (1) The Contractor shall use the property loss function in the Government-Furnished Property (GFP) module of the Procurement Integrated Enterprise Environment (PIEE) for reporting loss of Government property. Reporting value shall be at unit acquisition cost. Current PIEE users can access the GFP module by logging into their account. New users may register for access and obtain training on the PIEE home page at https://wawf.eb.mil/ piee-landing. * * * * * [FR Doc. 2020–18639 Filed 8–28–20; 8:45 am] BILLING CODE 5001–06–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 216 and 229 [Docket No. 200819–0222] RIN 0648–BG55 Guidelines for Safely Deterring Marine Mammals National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule. AGENCY: The Marine Mammal Protection Act (MMPA) allows for specified 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 directs the Secretary of Commerce, through NOAA’s NMFS, to publish a list of ‘‘guidelines’’ for use in safely deterring marine mammals under NMFS’ jurisdiction and to recommend ‘‘specific measures,’’ which may be used to nonlethally deter marine mammals listed under the Endangered Species Act (ESA). While the guidelines and specific measures are not mandatory, the MMPA provides protection from liability under the MMPA for take resulting from such deterrence measures by specifying that any actions taken to deter marine mammals that are consistent with the guidelines or specific measures are not a violation of the act. NMFS has not evaluated these deterrents for effectiveness. This rulemaking also khammond on DSKJM1Z7X2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 53763 includes prohibitions on certain deterrent methods that NMFS has determined, using the best available scientific information, would have a significant adverse effect on marine mammals. for the hearing impaired may call the Federal Information Relay Service at 1– 800–877–8339 between 8 a.m. and 4 p.m. Eastern time, Monday through Friday, excluding Federal holidays. SUPPLEMENTARY INFORMATION: Comments must be received by October 30, 2020. ADDRESSES: You may submit comments on this document, identified by NOAA– NMFS–2020–0109, by either of the following methods: Electronic Submission: Submit all electronic public comments via the Federal e-Rulemaking Portal: 1. Go to www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20200109; 2. Click the ‘‘Comment Now!’’ icon, complete the required fields; 3. Enter or attach your comments. Mail: Submit written comments to Chief, Marine Mammal and Sea Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 EastWest Highway, Silver Spring, MD 20910. Instructions: 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 by NMFS. 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.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter N/ A in the required fields if you wish to remain anonymous). The NMFS Acoustic Deterrents Web Tool is available and accessible via the internet at: https:// jmlondon.shinyapps.io/NMFSAcoustic DeterrentWebTool/. Copies of the draft Environmental Assessment (EA) prepared in support of this action are available and accessible via the internet at: https:// www.regulations.gov/. Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to NMFS Office of Protected Resources and by email to OIRA_Submission@omb.eop.gov or fax to (202) 395–7285. FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected Resources, 301–427–8402; Amy Scholik-Schlomer, Office of Protected Resources, 301–427–8402. Individuals who use a telecommunications device Background The deterrence provisions of the MMPA (16 U.S.C. 1361 et seq.) provide an exception to otherwise prohibited acts, allowing specified persons to deter a marine mammal from damaging fishing gear and catch, damaging personal or public 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 developed a process and policy to distinguish serious from non-serious injuries (https:// www.fisheries.noaa.gov/national/ marine-mammal-protection/marinemammal-protection-act-policiesguidance-and-regulations# distinguishing-serious-from-non-seriousinjury-of-marine-mammals). Specifically, MMPA section 101(a)(4)(A) allows the owner of fishing gear or catch, the owner of private property, or an employee or agent of such owner (‘‘specified persons’’), to deter marine mammals from damaging fishing gear or 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. The appropriate use of deterrents is allowed under these circumstances so long as any such use does not result in mortality or serious injury of a marine mammal. Section 101(a)(4)(A) does not allow the use of deterrents by any other person or entity or for any other purpose than those expressly enumerated. MMPA section 101(a)(4)(B) directs the Secretary of Commerce, through NMFS, to publish a list of guidelines for use in safely deterring marine mammals and to recommend specific measures which may be used to non-lethally deter marine mammals listed as endangered or threatened under the ESA. Section 101(a)(4)(B) provides protection from liability from take, including mortality and serious injury, resulting from actions to deter marine mammals that are consistent with such guidelines and specific measures by specifying that such actions are not a violation of the MMPA. Compliance with the recommended specific measures would not necessarily provide protection from DATES: PO 00000 Frm 00074 Fmt 4702 Sfmt 4702 E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 53764 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules liability under the ESA for the taking of ESA-listed marine mammals (see Classification section). The statute uses the terms ‘‘guidelines’’ and recommended ‘‘specific measures,’’ which indicates that these measures are not mandatory and only need to be complied with if an individual or entity wanted protection from liability under section 101(a)(4)(B) in the event of a marine mammal serious injury or mortality. Although they are guidelines and recommended specific measures, the statute nevertheless requires that the guidelines be published in the Federal Register and developed after notice and an opportunity for public comment. Although the guidelines and recommended specific measures are not mandatory, as described above, MMPA section 101(a)(4)(C) allows that NMFS may prohibit certain deterrence methods 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. Specified persons may choose to deter marine mammals using deterrents that are not included in the guidelines, recommended specific measures, or prohibitions. However, if a marine mammal is killed or seriously injured as a result of deterrence actions outside those specified in the guidelines or specific measures, the protection from liability provided in section 101(a)(4)(B) would not apply. To implement the statutory provisions and inform development of these guidelines, NMFS initially solicited public input on which deterrents to evaluate and consider for approval (79 FR 74710, December 16, 2014). NMFS requested 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 would not result in mortality or serious injury, and any other implementation considerations. We received a range of comments and requests from non-governmental organizations, private sector companies and product developers, fishery management councils, commercial and recreational fishermen, and representatives of the merchant shipping and maritime trade industry. For example, multiple respondents urged NMFS to ensure any prohibitions and guidelines were not too specific as VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 to limit the ability to develop new technologies or products and to consider geographical and species variation inherent in the deterrent process. There were also general requests for NMFS to consider including acoustic devices along with the range of deterrents currently in use so commercial and recreational fishermen would have advice on and multiple options to deter different species under a variety of conditions, and potential protection from liability for take resulting from their use. NMFS considered information from this public comment period to assist with determining which methods and technologies are appropriate for these guidelines. Separate from the provisions provided in the MMPA section 101(a)(4) for nonlethally deterring marine mammals, section 109(h) allows designated Federal, state, and local government officials or employees to take marine mammals in the course of their duties. Specifically, section 109(h) states that nothing in MMPA Title I or Title IV prevents a Federal, state, or local government official or employee, or person designated under section 112(c) from taking, in the course of their duties, a marine mammal in a humane manner (including euthanasia) if such taking is for the: (1) Protection or welfare of the mammal, (2) protection of the public health and welfare, or (3) nonlethal removal of nuisance animals. Any takes occurring under the authority of section 109(h) must be reported to the NMFS within 60 days pursuant to 50 CFR 216.22(b). These proposed guidelines and recommended specific measures pertain to members of the public deterring marine mammals for reasons outlined in MMPA section 101(a)(4) and do not apply to situations covered under section 109(h), such as deterring marine mammals from a hazardous area (e.g., an oil spill). As a result of the protections afforded by the MMPA since 1972, many species of marine mammals, certain stocks of pinnipeds (seals and sea lions) in particular, are increasing in abundance in the United States. Many marine mammals feed mostly on fish. In recent years, frustration by fishermen and property owners stemming from conflicts with marine mammals has increased, particularly as some populations of marine mammals have increased in certain areas. In many areas, harbor seals and gray seals haul out on beaches commonly used by humans, increasing the chances of negative interactions between marine mammals and humans. Additionally, pinnipeds (e.g., California sea lions, PO 00000 Frm 00075 Fmt 4702 Sfmt 4702 Steller sea lions) regularly haul out on docks, sometimes damaging the docks and posing a threat to humans trying to access their property. In some fisheries, marine mammals regularly remove catch or bait (depredation) from fishing gear, and some species (primarily pinnipeds) take fish from aquaculture pens. Over 30 species of odontocetes (toothed whales, dolphins, porpoises) are known to engage in depredation. For example, some individuals in populations of sperm, killer, false killer, and pilot whales around the world have become adept at removing a variety of fish species from longline hooks, a behavior also exhibited by other toothed whales and dolphins in a wide range of fisheries. Other species take catch from trawl or gill nets. Regardless of gear type, depredation can lead to marine mammal bycatch, with some marine mammals dying or becoming seriously injured. Depredation can significantly affect the volume and quality of commercial and recreational catch and may contribute to fishermen taking retaliatory actions, such as intentionally shooting and killing marine mammals. NMFS has numerous stranding records documenting animals killed or injured by lethal take from gunshots, particularly of bottlenose dolphins in the NMFS Southeast Region and California sea lions in the NMFS West Coast Region. These proposed guidelines and recommended specific measures are intended to provide tools for fishermen and property owners to protect fishing gear, catch, and property, while also reducing intentional lethal takes and serious injuries of marine mammals. Further, this action would reduce unlawful take by prohibiting the use of those deterrent methods that we have determined will result in significant adverse effects to marine mammals. Tribal Treaty Fishing Several Indian tribes located in the Pacific Northwest have entered into treaties with the United States that expressly reserve the right to fish at their usual and accustomed grounds and stations. As explained in prior notices, these tribal treaty fisheries are conducted under the authority of the treaties and managed by the relevant tribe. See, e.g., 2010 NMFS List of Fisheries (74 FR 58859, November 16, 2009). In recognition of the sovereign authority of treaty fishing tribes over the conduct of their fisheries, NMFS proposes that the specific prohibitions in these regulations not apply to tribal fishermen participating in a treaty fishery. The guidelines may E:\FR\FM\31AUP1.SGM 31AUP1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules nevertheless serve as a resource for treaty tribes and tribal fishermen to inform methods for safely deterring marine mammals in the conduct of treaty fisheries and would still provide protection from liability for take resulting from deterrence actions taken consistent with these guidelines and recommended specific measures. fishing gear, catch, or bait from marine mammals, so long as any such modified gear and/or fishing practices do not result in the death or serious injury of a marine mammal and are consistent with the prohibitions included in this rulemaking; therefore, NMFS did not consider modifications to fishing gear as a deterrent. Alaska Natives NMFS intends that this proposed rule will have no impact or effect on Alaska Native take of marine mammals for subsistence purposes or the creating and selling of authentic Alaska Native articles of handicrafts and clothing, as provided under MMPA section 101(b). Types of Deterrents In general, deterrents fall into two categories, ‘‘non-acoustic’’ or ‘‘acoustic.’’ Non-acoustic deterrents target senses other than hearing to deter a marine mammal. Non-acoustic deterrents could be visual, physical barriers, electrical, chemosensory, or tactile. Visual deterrent methods rely on a marine mammal’s visual acuity and perception of a change in their immediate environment to elicit a flight or avoidance behavior. Physical barriers prevent an animal from gaining access to an area. Chemosensory deterrents used on marine mammals often focus on taste to induce an aversion response. In addition to chemical repellents applied through consumption mechanisms, chemicals used for predator control can also be aerosolized or applied through an inhalation route of entry. Tactile deterrent methods typically involve physically creating pain or discomfort to induce aversion with the goal of eliciting flight behaviors (Scordino 2010). Tactile deterrents can be propelled through the use of a multitude of devices to extend the deterrent potential beyond what would be possible with manual use (e.g., throwing or striking by hand). Acoustic deterrents, which can produce sound underwater or in air, fall into two main categories, impulsive and non-impulsive, based on their potential to affect marine mammal hearing sensitivity (i.e., cause a permanent threshold shift, (PTS)). Impulsive acoustic deterrents (e.g., seal bombs, firecrackers, banging pipes, bird bangers) produce sounds that are typically transient, brief (less than 1 second), broadband (produce sound over a wide frequency range), and consist of high peak sound pressure with rapid rise time and rapid decay (peak sound increases and dissipates quickly) and generally have an increased capacity to affect marine mammal hearing sensitivity. Some impulsive deterrents contain explosives (e.g., underwater firecrackers) while others do not (e.g., banging pipes). Nonimpulsive acoustic deterrents (e.g., pingers, predator sounds, air horns) typically only have small fluctuations in decibel (dB) level, making them less likely to affect hearing sensitivity khammond on DSKJM1Z7X2PROD with PROPOSALS Practice Avoidance Before Deterrence NMFS strongly encourages fishermen, private property owners, and government officials to practice avoidance techniques prior to attempting to deter any marine mammal. Avoiding interactions is the safest method for preventing death or serious injury to marine mammals and the most definitive way to minimize risk to human safety. Fishermen can modify fishing operations to avoid or minimize interactions with marine mammals by adjusting tow and haul times or duration of sets. Specific areas known or thought to be occupied by marine mammals should be avoided and all effort should be made to avoid setting or placing fishing gear and catch in areas where marine mammals are sighted. Trawling, trolling, or hauling gear in the vicinity of marine mammals should also be avoided and must cease when transiting through a group of marine mammals to avoid unlawful take. NMFS strongly encourages fishermen to avoid discarding fish in the vicinity of marine mammals or known haulout locations, particularly given the prohibition on feeding marine mammals found at 50 CFR 216.3. Finally, while observing marine mammals, NMFS strongly encourages compliance with all regional viewing guidelines to further reduce impacts to marine mammals. Gear Modifications To Deter Marine Mammals Gear modifications are any alterations to existing fishing gear intended to reduce bycatch and/or depredation. Simple gear modifications include changing the material or the characteristics of gear used (e.g., weak circle hooks), changing the color of the gear, reducing line length or strength, and adding materials to gear. Pursuant to MMPA section 101(a)(4), fishermen do not need authorization to modify gear and/or fishing practices to protect VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 PO 00000 Frm 00076 Fmt 4702 Sfmt 4702 53765 compared to impulsive sources (Southall et al. 2007; NMFS 2018; Southall et al. 2019). For a description of each deterrent evaluated and how it is used, please see the draft EA prepared under the National Environmental Policy Act (NEPA) for this action (see ADDRESSES). TABLE 1—TYPES OF NON-ACOUSTIC AND ACOUSTIC DETERRENTS EVALUATED Non-Acoustic Deterrents Visual ................. Physical barriers Chemo-sensory .. Tactile: Electrical ......... Projectiles used with firearms. Projectiles used with compressed air/gas. Other projectiles. Fixed sharp objects. Manual—sharp Manual—blunt Water .............. Air dancers, flags, pinwheels, streamers. Bubble curtains. Flashing or strobe lights. Human attendants. Lasers. Patrol animals. Predator shapes. Vessel chasing. Vessel patrolling. Unmanned aircraft systems. Anti-predator netting. Containment booms/waterway barriers. Gates/closely spaced bars. Horizontal bars. Rigid fencing in air. Swim step protectors. Chemical irritants. Corrosive chemicals. Taste deterrents. Cattle prods. Electric fencing in air. Electric fencing in water. Electrical mats. Electrical nets. Electroshock weapon technology. Underwater electric barriers. Bullets, plastic bullets, rubber bullets, shotgun shells with rubber shot or balls, BBs, shot pellets, beanbag rounds, sponge grenades. BBs, shot pellets, paintballs, sponge grenades, nails, spears. Arrows, darts, spears, foam missiles/rounds, spears, rocks. Nails, barbed wire. Gaffs, hooks, sharpended poles, etc. Crowder boards, blunttipped poles, brooms, mop handles, butt of a spear gun, etc. Hose, sprinkler, water gun. Acoustic Deterrents Impulsive: E:\FR\FM\31AUP1.SGM 31AUP1 53766 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules TABLE 1—TYPES OF NON-ACOUSTIC after which sighting probability begins AND ACOUSTIC DETERRENTS EVALU- to steeply decline. Given this, we conservatively chose to use a 100-m ATED—Continued Explosive ........ Non-Explosive Non-impulsive .... Fireworks; bird bangers; bird whistler/screamers; pencil launchers/bear bangers; propane cannons; explosive pest control devices (i.e., seal bombs, cracker shells, bird bombs, underwater firecrackers). Banging objects/passive acoustic in-air deterrents; low-frequency, broadband devices; pulsed power devices. Acoustic alarms (i.e., pingers, transducers); in-air noisemakers; predator sounds/alarm vocalizations using underwater speakers. Evaluation Criteria and Considerations khammond on DSKJM1Z7X2PROD with PROPOSALS Acoustic Deterrents In analyzing acoustic deterrents, we considered each deterrent’s potential to cause acoustic injury (i.e., PTS) as well as direct physical, non-acoustic injury to the lungs and gastrointestinal (GI) tract associated with underwater explosives. The potential for acoustic deterrents to cause acoustic injury was evaluated based upon marine mammal hearing groups using the PTS onset thresholds in NMFS’ Technical Guidance (NMFS 2018); see the EA for a list of species included in each of the five hearing groups. We developed an evaluation criterion to compare to these thresholds. Our evaluation criterion considered whether a deterrent had the potential to result in PTS at distances >100 meters (m) from the source after an hour of exposure. We chose a 100-m distance (i.e., isopleth or a line drawn through all points having equal sound pressure or exposure levels) for two reasons. First, 100 m is a minimum displacement distance for various devices and is a typical distance within which some of these devices are deployed from one another (reviewed in McGarry et al. 2020, see Tables 2 and 3). Second, it represents a reasonable distance at which one can sight the most susceptible and difficult to sight marine mammal hearing group (High Frequency (HF) cetaceans; Dall’s porpoise, harbor porpoise, dwarf sperm whales, and pygmy sperm whales) with high probability using unaided vision. Based on Roberts et al. (2016), the probability of sighting harbor porpoises with unaided vision is high (i.e., detection probability ∼ 1) out to around 100 m, VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 isopleth as it provides reasonable assurance that an acoustic deterrent user would be able to sight the most susceptible and difficult to sight marine mammal species and, as such, all other less susceptible more easily sighted marine mammal species. This is consistent with a recent review of acoustic deterrents by McGarry et al. (2020), who determined a 100-m criterion was appropriate to evaluate deterrents for the likelihood of exposure resulting in PTS onset. The 1-h exposure duration represents a reasonable maximum exposure duration expected for marine mammals from a deterrent device within a 24-hour (h) period (e.g., exposure can be continuous or consist of multiple shorter exposures throughout the day). Our analysis used twice the duration used by the McGarry et al. 2020 evaluation (i.e., 30-minutes) to account for the potential for multiple exposures to occur within a day. The PTS onset distances associated with the 1-h exposure duration represents the distance from the deterrent a marine mammal would have to remain for an hour to potentially experience PTS. If an animal occurs farther from the deterrent, PTS is unlikely to occur. If an animal is closer than 100 m, the likelihood of PTS would depend both on how close the animal gets to the deterrent and how long the animal remains within this isopleth. To account for incidental exposure of non-targeted marine mammal species, we analyzed all acoustic deterrents for potential acoustic injury impacts to every marine mammal hearing group, regardless of whether the hearing group included targeted or non-targeted marine mammals. Thus, we evaluated specifications in consideration of the most susceptible hearing group. Acoustic devices were evaluated based on their specific acoustic characteristics, such as source level (underwater: dB re: 1 micropascal (mPa) at 1 m and airborne: dB re: 20 mPa at 1 m), frequency range (i.e., kilohertz (kHz)), signal duration, and silent intervals between signals (inter-pulse interval or minimum silent interval between signals). To determine isopleths, practical geometric spreading (15 log R) was used to model transmission loss through the environment for all underwater sources. The only exceptions were seal bombs and airborne devices, where it was considered more appropriate to rely upon spherical spreading (20 log R) (Attenborough 2014; Wiggins et al. PO 00000 Frm 00077 Fmt 4702 Sfmt 4702 2019). Sound typically propagates through airborne environments via spherical spreading (Attenborough 2014), and recent field measurements of seal bomb detonations underwater support using spherical spreading to describe transmission loss (Wiggins et al. 2019). NMFS evaluated source levels for various deterrents to determine the maximum source level that would not exceed our 100-m, 1-h criterion. All underwater devices with source levels up to 170 dB, and a maximum 54 percent duty cycle (i.e., producing sound for less than 32 minutes within an hour), met the evaluation criterion. For acoustic deterrents that involve the use of underwater explosives, NMFS also evaluated the potential for severe lung injury, slight lung injury, and gastrointestinal tract injury (DoN 2017). Quantitative mortality criteria (severe lung injury) resulting from exposure to sound are only available for underwater explosives. Lung injury thresholds are dependent on animal mass (i.e., smaller mass individuals are more susceptible than those with higher mass). Therefore, we evaluated underwater impulsive explosive acoustic deterrents based on conservative assumptions: (1) That the animal was at the surface, and (2) the smallest mass representative calf or pup in each hearing group was exposed (DoN 2017). Thus, when evaluating explosive deterrents, we considered the criteria (lung, GI tract, or PTS) resulting in the largest isopleth. Some acoustic deterrents have specifications that can be manipulated or adjusted by the user. For example, a user can control the distance a deterrent is deployed from a marine mammal and/or the time (i.e., silent interval) between deployments. Additionally, deterrents may have multiple or programmable settings (e.g., duty cycle, silent interval between signals, and sound type/variety). For manuallydeployed deterrents (e.g., hand held devices where the silent interval between signals can be controlled), we determined the minimum silent interval needed to meet the evaluation criterion (i.e., onset of PTS >100-m, 1-h), for a single deterrent device, for all marine mammal hearing groups. For programmable devices capable of producing output with a range of characteristics (e.g., adjustable source level or produced a broad range of frequencies), we evaluated the device by using the maximum potential value for each characteristic, recognizing that many combinations of specifications are possible, and determined the minimum silent interval, for a given device, needed to meet the evaluation criterion E:\FR\FM\31AUP1.SGM 31AUP1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules for all marine mammal hearing groups. This allowed us to evaluate the maximum potential impact of a given deterrent as well as how any deterrents capable of exceeding our criterion may be deployed in ways that are safe and within our criterion. In addition to acoustic injury, NMFS also considered secondary impacts (e.g., chronic stress, displacement from important habitat, decreased fitness). Non-Acoustic Deterrents We evaluated non-acoustic deterrents for the likelihood they would impact marine mammals and the potential severity of those impacts. Severity was assessed as lethal (mortality or serious injury) or sub-lethal including whether the impact was primary (e.g., physical trauma, trauma, toxicity) or secondary (e.g., infection, chronic stress, displacement from important habitat, decreased fitness). We evaluated whether a potential injury would be serious according to the NMFS Policy for Distinguishing Serious from NonSerious Injury of Marine Mammals (77 FR 3233; January 23, 2012). Deterrents not likely to result in mortality or serious injury were included in the guidelines or recommended specific measures. Other Considerations khammond on DSKJM1Z7X2PROD with PROPOSALS To evaluate some categories of deterrents mentioned below, NMFS relied on information on effects on humans and other animals (e.g., cows) when that information was not available for marine mammals. For visual strobe or flashing lights, NMFS proposes to include lights that are used for humans because pinnipeds and likely cetaceans have similar visual acuity to humans (Scholtyssek et al. 2007, Levenson and Schusterman 1999). For electric fencing in air, NMFS proposes to include a maximum of 3,000 volts (V), consistent with industry standards for deterring livestock with skin 1 millimeter (mm) thick, as pinnipeds generally have thicker skin and underlying blubber when compared to livestock (e.g., Steller sea lion skin has been measured as 5 mm (Jonker 1996)). For electric mats, NMFS proposes to include low voltage 24V direct current as that is safe for humans. For using paintballs and sponge grenades to deter pinnipeds, NMFS considered typical deployment practices for humans (not shooting another person with paintballs within 3 m and sponge grenades within 10 m) as well as the acoustic impacts (e.g., minimum of 14 m for paintballs and sponge grenades meets our evaluation criterion for phocids (earless seals) related to PTS for air rifles). In general, there are two types of paintballs; those considered ‘‘low impact’’ (i.e., 0.50 caliber) and those considered standard (i.e., 0.68 caliber). The recommended minimum age for playing paintball varies (sometimes as young as 6 years old) and low impact paintballs are often recommended for children younger than 10–12 years old; therefore, the expected impacts to pinnipeds would be less than those experienced by human children because pinnipeds are much larger. Sponge grenades can be deployed using low velocity hand held launchers or high velocity automatic, mounted launchers. NMFS is proposing to include low velocity sponge grenades (40 x 46 mm) deployed using hand held launchers. All airborne acoustic deterrents evaluated had source levels <142 dB for impulsive deterrents and <158 dB for non-impulsive deterrents, all of which meet the acoustic evaluation criterion. As noted above, NMFS proposes to include underwater acoustic deterrents with minimum distances and silent intervals to ensure that the acoustic evaluation criterion are met. Proposed Guidelines for Deterring Marine Mammals NMFS proposes the following guidelines (Tables 2 and 3) to deter marine mammals that are not listed under the ESA; these guidelines include deterrents for marine mammals not listed as threatened or endangered. For using deterrents to target each of the three taxa, mysticetes (baleen whales), odontocetes (toothed whales, dolphins, porpoises), and pinnipeds (seals and sea lions), the proposed guidelines include types of deterrents within a particular category of deterrents. Additionally, we include associated implementation provisions that must be followed to allow the individual to take advantage of the protection from liability provided 53767 in section 101(a)(4)(B); this is particularly noteworthy for acoustic deterrents where minimum distances and/or a minimum silent intervals are specified. For acoustic deterrents, the minimum distances and silent intervals vary according to each marine mammal hearing group: High-frequency cetaceans (HF), mid-frequency (MF) cetaceans, low-frequency (LF) cetaceans, phocid pinnipeds (earless seals), and otariid pinnipeds (eared seals and sea lions). General Guidelines Anyone attempting to deter a marine mammal should consider their own personal safety, that of others in the vicinity, and the safety of the marine mammal. When operating a vessel, captains should use extreme caution when maneuvering around marine mammals, as they may surface in unexpected places. If a marine mammal approaches a vessel, the captain should put the engine in neutral to avoid striking the animal. Deterrent users must cease using a deterrent if an animal demonstrates any sign of aggression (e.g., charging, lunging), as this could compromise human safety as well as marine mammal safety. If deterrent attempts are unsuccessful, NMFS strongly encourages users to temporarily suspend the activity (e.g., fishing), giving the animal a chance to leave the area before resuming that activity. NMFS has not evaluated these deterrents for effectiveness. NMFS recommends that users start with less impactful techniques first (e.g., visual, physical barriers, in-air noisemakers, water deterrents), before using more impactful deterrents (e.g., tactile— projectiles, explosives). Additionally, animal size should be taken into consideration. More impactful deterrents should be limited to adult animals (e.g., adult male Steller sea lion on a dock that is endangering personal safety). Users should take into consideration the size of the animal with respect to human safety, particularly when using certain deterrents in close proximity to animals (e.g., crowder boards). Summary of Guidelines TABLE 2—LIST OF NON-ACOUSTIC DETERRENTS FOR NON-ESA MARINE MAMMALS INCLUDED IN THE GUIDELINES Visual ........... VerDate Sep<11>2014 Mysticetes Odontocetes Bubble curtains .................................. Flashing or strobe lights .................... Predator shapes ................................ Vessel patrolling ................................ Unmanned Aircraft Systems ............. Bubble curtains .................................. Flashing or strobe lights .................... Predator shapes ................................ Vessel patrolling ................................ Unmanned Aircraft Systems ............. 16:36 Aug 28, 2020 Jkt 250001 PO 00000 Frm 00078 Fmt 4702 Sfmt 4702 Pinnipeds Bubble curtains. Air dancers, flags, pinwheels, and streamers. Flashing or strobe lights. Human attendants. Predator shapes. E:\FR\FM\31AUP1.SGM 31AUP1 53768 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules TABLE 2—LIST OF NON-ACOUSTIC DETERRENTS FOR NON-ESA MARINE MAMMALS INCLUDED IN THE GUIDELINES— Continued Mysticetes Odontocetes Pinnipeds Physical barriers. Containment booms, waterway barriers, and log booms. Containment booms, waterway barriers, and log booms. Tactile—Electrical. None .................................................. None .................................................. Vessel patrolling. Unmanned Aircraft Systems. Containment booms, waterway barriers, and log booms. Gates or closely spaced poles. Horizontal bars/bull rails. Rigid fencing in air. Swim step protectors. Electric fencing (in air). Tactile—Projectile. Foam projectiles with toy guns ......... Foam projectiles with toy guns ......... Low voltage electric mats. Foam projectiles with toy guns. Blunt objects—blunt tip poles, brooms, mop handles, etc. Water hoses, sprinklers, water guns Paintballs with paintball guns. Sponge grenades with hand held launcher. Blunt objects with slingshot. Blunt objects—blunt tip poles, brooms, mop handles, etc. Water hoses, sprinklers, water guns. Tactile—Manual. Tactile— Water. Blunt objects—blunt tip poles, brooms, mop handles, etc. Water hoses, sprinklers, water guns TABLE 3—LIST OF ACOUSTIC DETERRENTS FOR NON-ESA MARINE MAMMALS INCLUDED IN THE GUIDELINES Impulsive— Explosives. Mysticetes Odontocetes Pinnipeds None .................................................. None .................................................. Impulsive— Non-Explosives. Banging objects (e.g., Oikomi pipes) underwater. Banging objects (e.g., Oikomi pipes) underwater. Non-Impulsive (<170 dB RMS). Acoustic alarm (i.e., pingers/transducers). Acoustic alarms (i.e., pingers/transducers). Predator sounds/alarm vocalizations using underwater speakers. Predator sounds/alarm vocalizations using underwater speakers. Aerial pyrotechnics/fireworks. Bird bangers, bird whistlers/screamers, bear bangers using pencil launcher, propane cannons. Cracker shells, bird bombs, seal bombs, underwater firecrackers. Banging objects (e.g., Oikomi pipes)/in-air passive acoustic devices (e.g., hanging chains, cans). Low frequency, broadband devices. Pulsed power devices. Acoustic alarms (i.e., pingers/transducers). Air horns, in-air noisemakers, sirens, whistles. khammond on DSKJM1Z7X2PROD with PROPOSALS Predator sounds/alarm vocalizations using underwater speakers. Deterrents used in air (air dancers, gates, bull rails, aerial pyrotechnics, bird bombs, etc.) are included in the guidelines for pinnipeds only because seals and sea lions routinely spend time out of the water. With respect to cetaceans, underwater cracker shells, seal bombs, pulsed power devices, and low frequency, broadband deterrents could result in onset of PTS at distances close to 100 m, which is our evaluation criterion; therefore, in order to take advantage of the protection from liability provided in section 101(a)(4)(B), anyone using these devices to target pinnipeds, must first conduct a thorough scan for cetaceans in all directions as noted below and maintain the specified minimum silent interval. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 Programmable Devices and the NMFS Acoustic Deterrent Web Tool Many devices allow the user to manipulate various settings or characteristics of the device. In order to take advantage of the protection from liability provided in section 101(a)(4)(B), any underwater nonimpulsive devices capable of producing sound ≥ 170 dB root mean square (RMS) must be evaluated and approved via the Acoustic Deterrent Web Tool before attempting to use the deterrent. Users seeking protection from liability under section 101(a)(4)(B) must visit NMFS’ online Acoustic Deterrent Web Tool and enter the settings they intend to use for a particular device. If the settings meet the evaluation criterion (onset of PTS >100 m, 1-h), the Web Tool will PO 00000 Frm 00079 Fmt 4702 Sfmt 4702 produce a certificate indicating that its use in the specified manner is consistent with these guidelines such that any resultant mortality or serious injury of a marine mammal is not a violation of the MMPA. If the specifications do not meet NMFS’ criteria for approval, the user would not obtain a certificate and any resultant mortality or serious injury of a marine mammal could be a violation of the MMPA. The proposed Web Tool is available on the internet at https:// jmlondon.shinyapps.io/NMFSAcoustic DeterrentWebTool/. Additional Specifications For many deterrents included in the guidelines, we include additional specifications to further minimize the E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules risk of injury to marine mammals as a condition of effectuating the protection from liability under section 101(a)(4)(B). For acoustic deterrents, to reduce potentially harmful impacts to the target marine mammals and other sensitive marine mammals in the vicinity, minimum deployment distances as well as silent intervals are required (Tables 4–7). When deploying acoustic deterrents, users in close proximity to each other and/or on the same vessel must coordinate deploying any acoustic deterrents that have a minimum silent interval to ensure compliance with the requirements. For acoustic deterrents targeting pinnipeds, there are separate distances required for each group of pinnipeds. Phocids (earless seals) have lower PTS thresholds than otariids (eared seals and sea lions); thus, if both taxa are present, the user is required to comply with the minimum distance for phocids. Additionally, for several types of deterrents (e.g., explosives), there are additional municipal, state, and/or Federal requirements for using and possessing such deterrents. These guidelines and recommended specific measures do not exempt users from any such requirements. For example, in the Southeastern United States, possessing and using explosives for fishing in various contexts is prohibited by state regulations in all states from North Carolina through Texas, as well as by Federal regulations under the Magnuson-Stevens Fishery Conservation and Management Act. In other words, compliance with this regulation and section 101(a)(4)(A) does not obviate the user’s obligation to comply with all other applicable local, state, and Federal requirements related to the use of deterrents. The additional implementation measures that are included in this rule in order to effectuate the protection from liability provided in section 101(a)(4)(B) are summarized below. 33 CFR.83.06 and the International Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602)), compliance with any and all applicable speed limitations, and a fixed direction to avoid coming into contact with a marine mammal. UAS (Unmanned aircraft system). Only vertical takeoff and landing aircraft are allowed for deterring marine mammals. Devices must be in good working order and operated consistent with the manufacturer’s specifications. Users shall fly UASs no closer than 5 m from an animal. UAS altitude adjustments shall be made away from animals or conducted slowly when above animals. A UAS shall hover over a target marine mammal only long enough to deter the animal and should not come into direct contact with the animal. Users shall abide by applicable approach regulations for threatened and endangered marine mammals in 50 CFR 223.214 and 224.103, and any other applicable approach regulations for marine mammals such as those at 50 CFR 216.19 and 15 CFR 922.184. Visual Deterrents Flashing lights or strobe lights. Flashing or strobe lights used to deter marine mammals must conform to any standards established by Federal law. Flags, pinwheels, and streamers. Flags, pinwheels, and streamers used to deter pinnipeds must ensure, to the best ability of the user, that the materials will stay intact and securely fastened; all such products must be installed and maintained in such a manner as to reduce the risk of entanglement or ingestion. Vessel patrolling. When patrolling fishing gear or property with a vessel, the user must maintain a consistent and ‘‘safe speed’’ (as the term is defined in Tactical—Electrical Deterrents Electric fencing (in air). Electric fencing used to deter pinnipeds on land shall be no more than 3,000 V and properly maintained to ensure required voltage and reduce the risk of entanglement or entrapment. Electric mats. Electric mats used to deter pinnipeds shall not exceed 24 V nominal. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 Physical Barrier Deterrents Containment booms, waterway barriers, and log booms. Any containment booms, waterway barriers, and log booms used to deter marine mammals must be constructed, installed, secured and maintained to reduce the risk of entanglement or entrapment. In-water lines should be kept stiff, taut, and non-looping. Booms/ barriers should not block major egress and ingress points for marine mammals in channels, rivers, passes, and bays. Rigid fencing in air, horizontal bars/ bull rails, and gates or closely spaced poles. Any fencing, rails, gates, and poles used to deter pinnipeds must be constructed, installed, and maintained in such a manner as to ensure spacing, height, and/or width would not result in entrapment or entanglement. Tactile—Projectile Deterrents Foam projectiles with toy guns. When using foam projectiles with toy guns to deter marine mammals, the deterrent must strike the posterior end of an animal’s body, taking care to avoid the animal’s head and/or blowhole. PO 00000 Frm 00080 Fmt 4702 Sfmt 4702 53769 Paintballs with paintball guns. When using paintballs to deter pinnipeds, only non-toxic and water-soluble paintballs may be deployed using paintball guns at a minimum of 14 m from a phocid and 3 m from an otariid, and the paintball must strike the posterior end of an animal’s body, taking care to avoid the animal’s head. Sponge grenades using handheld launcher. Sponge grenades used to deter pinnipeds must be deployed at a minimum distance of 14 m from a phocid and 10 m from an otariid and the sponge grenade must strike the posterior end of an animal’s body, taking care to avoid the animal’s head. Blunt objects with slingshot. When using blunt objects with a sling shot to deter pinnipeds, users must strike an area near an animal first before striking the posterior end of an animal’s body, taking care to avoid the animal’s head. Blunt objects deployed via sling shot must not be sharp or metallic. Tactile—Manual Deterrents Blunt objects. Blunt objects (e.g., poles, broom, and mop handles) used to deter marine mammals must be deployed using a prodding motion. Such deterrents are only appropriate in situations where an animal is directly pursuing a person, dock, vessel, or fishing gear, or attempting to haul out on a dock or vessel. Users must impact the posterior end of an animal’s body (or the chest of a pinniped), taking care to avoid the animal’s head and/or blowhole. Tactile—Water Deterrents Water deterrents. When using water deterrents, users must first strike an area near the animal before striking the animal; then the user must strike the posterior end of an animal’s body, taking care to avoid the animal’s head and/or blowhole. Acoustic Impulsive Explosive Deterrents Impulsive explosives. For the protection from liability provided in section 101(a)(4)(A) to apply, impulsive explosives are allowed only for deterring pinnipeds and only under certain conditions. When deploying approved impulsive explosives, users must abide by minimum distance and silent intervals as well as several other requirements included below. For all explosives, users must: • Obtain all necessary permits or authorizations from local, state, and/or Federal authorities and make them available for inspection upon request by any authorized officer; and • Deploy approved explosives behind a pinniped by the appropriate minimum E:\FR\FM\31AUP1.SGM 31AUP1 53770 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules distance, taking care to avoid deploying an explosive in front of the animal, in the direction the animal is traveling, or in the middle of a group of animals. For seal bombs, users must abide by the following: 1. Conduct a visual scan in all directions for cetaceans within 100 m; if the user cannot see 100 m due to darkness or weather conditions, then seal bombs are prohibited; 2. If cetaceans (whales, dolphins, porpoises) are sighted within 100 m of the user, then seal bombs are prohibited; 3. The visual scan must be repeated in all directions before each subsequent deployment; and 4. If both pinniped taxa are present, the minimum distance for phocids shall apply. For cracker shells deployed underwater, the requirements are the same as those for deploying seal bombs, except the required visual scans are for determining whether HF cetacean species (i.e., Dall’s porpoise, harbor porpoise, pygmy sperm whales, and dwarf sperm whales), as opposed to all cetaceans for seal bombs, are within a 100-m of the user. TABLE 4—MINIMUM SILENT INTERVALS AND DISTANCES WHEN DEPLOYING UNDERWATER ACOUSTIC IMPULSIVE EXPLOSIVES FOR DETERRING PINNIPEDS Minimum distance from phocids (m) Deterrent Minimum silent interval between deployments Cracker shell ............................................................... Seal bomb .................................................................. Underwater firecracker ............................................... 6 minutes .................................................................... 180 seconds ............................................................... 1 second ..................................................................... Minimum distance * from otariids (m) 3 20 ** 2 ** 2 2 ** 2 * If both phocid and otariid pinnipeds are observed in the area, then the minimum distance for phocids is required. ** Distance is based on physical proximity instead of acoustic effects. Because Steller sea lions from both the endangered western distinct population segment (DPS) as well as the eastern DPS, which is not ESA-listed, occur east of 144° W longitude and north of latitude 55°49′22.00″ N (the area north of the southern tip of Coronation Island) and cannot be visually distinguished, impulsive explosives deployed underwater (e.g., seal bombs, cracker shells, underwater firecrackers) are not included in the guidelines for deterring any Steller sea lions in all areas west of 144° W longitude and north of latitude 55°49′22.00″ N east of 144° W longitude. For airborne explosives such as bird bombs and cracker shells, users must aim in the air above the animal and abide by the required minimum distances in Table 5. TABLE 5—MINIMUM DISTANCES WHEN DEPLOYING AIRBORNE ACOUSTIC IMPULSIVE EXPLOSIVES FOR DETERRING PINNIPEDS Phocid Pinniped Minimum Distance (m) Deterrent Aerial pyrotechnics/fireworks ................................................................................................................................... Bear bangers using pencil launcher ........................................................................................................................ Bird banger .............................................................................................................................................................. Bird bomb ................................................................................................................................................................ Bird whistler/screamer ............................................................................................................................................. Cracker shells .......................................................................................................................................................... Propane cannon ...................................................................................................................................................... Otariid Pinniped Minimum Distance * (m) 23 2 23 8 5 24 2 2 ** 2 2 ** 2 ** 2 2 ** 2 * If both phocid and otariid pinnipeds are observed in the area, then the minimum distance for phocids is required. ** Distance is based on physical proximity instead of acoustic effects. khammond on DSKJM1Z7X2PROD with PROPOSALS Acoustic Impulsive Non-Explosive Deterrents For impulsive non-explosives, NMFS is not proposing additional specifications for banging objects in air beyond the minimum distances and VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 silent intervals described in Table 6. For banging objects underwater, pulsed power devices, and low frequency broadband devices, users are required to conduct a visual scan in all directions for either all cetaceans when using low frequency, broadband devices or HF PO 00000 Frm 00081 Fmt 4702 Sfmt 4702 cetaceans (i.e., Dall’s porpoise, harbor porpoise, pygmy sperm whales, and dwarf sperm whales) for pulsed power devices or banging objects underwater as described above for impulsive explosives. E:\FR\FM\31AUP1.SGM 31AUP1 53771 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules TABLE 6—MINIMUM DISTANCES AND SILENT INTERVALS WHEN DEPLOYING ACOUSTIC IMPULSIVE NON-EXPLOSIVES FOR DETERRING EACH HEARING GROUP Source level (RMS SPL) Deterrent Pulsed Power Device ............................ 220 dB Low frequency, broadband device ........ Low frequency, broadband device ........ Low frequency, broadband device ........ Banging objects underwater .................. Banging objects in air ............................ 219 dB 215 dB 208 dB n/a n/a Phocid pinniped minimum distance (m) Otariid pinniped minimum distance (m) Minimum silent interval between signals LF cetacean minimum distance (m) MF cetacean minimum distance (m) HF cetacean minimum distance (m) 1200 seconds (20 minutes). 300 seconds ............ 120 seconds ............ 30 seconds .............. 18 seconds .............. n/a ............................ ..................... ........................ ........................ 1 1 ..................... ..................... ..................... 11 ................ n/a ............... ........................ ........................ ........................ 3 n/a ........................ ........................ ........................ ........................ n/a 5 5 4 8 24 1 1 1 2 2 Note: A blank cell indicates that particular deterrent is not included in the guidelines or specific measures for that taxon. Acoustic Non-Impulsive Deterrents distances for phocids based on hearing sensitivity and minimum distances for otariids based on physical proximity to For airborne non-impulsive deterrents, Table 7 denotes minimum ensure people keep a safe distance from the animal. TABLE 7—MINIMUM DISTANCES WHEN DEPLOYING AIRBORNE NON-IMPULSIVE ACOUSTIC DETERRENTS FOR PINNIPEDS Phocid pinniped minimum distance (m) Deterrent Air horn .................................................................................................................................................................... In-air noise maker (e.g., vuvuzela) .......................................................................................................................... Sirens ....................................................................................................................................................................... Whistles ................................................................................................................................................................... Otariid pinniped minimum distance * (m) 4 5 2 3 ** 2 ** 2 ** 2 ** 2 * If both phocid and otariid pinnipeds are observed in the area, then the minimum distance for phocids is required. ** Distance is based on physical proximity instead of acoustic effects. Proposed Recommended Specific Measures for Deterring ESA-Listed Marine Mammals A summary of the recommended specific measures proposed for ESAlisted marine mammals is in Table 8. NMFS proposes to include all of the above guidelines as recommended specific measures for deterring ESAlisted mysticetes (baleen whales). Persons deterring marine mammals are still required to abide by existing approach regulations for humpback whales in Alaska, North Atlantic right whales, western Steller sea lions, and killer whales in Washington pursuant to 50 CFR 223.214 and 224.103, and any other applicable approach regulations for marine mammals such as those at 50 CFR 216.19 and 15 CFR 922.184. For ESA-listed odontocetes, NMFS proposes recommended specific measures for the Cook Inlet DPS of beluga whales, the Main Hawaiian Islands Insular DPS of false killer whales, the Southern Resident DPS of killer whales, and sperm whales. For ESA-listed pinnipeds, NMFS proposes recommended specific measures for the western DPS of Steller sea lions and the Hawaiian monk seal; for all other species of ESA-listed pinnipeds, NMFS proposes to include all of the above guidelines as recommended specific measures. The western DPS of Steller sea lions is defined as Steller sea lions born west of 144° W longitude. In recent years, western DPS Steller sea lions have also been documented east of 144° W longitude. Western DPS Steller sea lions east of 144° W longitude commonly occur from Cape Suckling through Yakutat and northern southeast Alaska to 55°49′22.00″ N latitude, but are rarely found south of 55°49′22.00″ N latitude (north of the southern tip of Coronation Island) (Jemison et al. 2018, Hastings et al. 2020). Therefore, NMFS proposes recommended specific measures for all areas occupied by western DPS animals, both east and west of 144° W, except for airborne acoustic impulsive explosives, which are proposed only for deterring Steller sea lions east of 144° W longitude and north of 55°49′22.00″ N latitude. TABLE 8—RECOMMENDED SPECIFIC MEASURES FOR DETERRING ESA-LISTED MARINE MAMMALS ESA-listed odontocetes khammond on DSKJM1Z7X2PROD with PROPOSALS ESA-listed mysticetes Insular FKW CI Beluga ESA-listed pinnipeds SRKW Sperm whales HMS WSSL All others ................ ✓ ✓ ................ ✓ ✓ ✓ ................ ✓ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ................ ✓ ✓ ✓ Non-Acoustic Deterrents Visual: Air dancers, flags, pinwheels, streamers .................................. Bubble curtains ......................................................................... Flashing or strobe lights ........................................................... Human attendants ..................................................................... Predator shapes ........................................................................ Vessel patrolling ........................................................................ Unmanned aircraft systems ...................................................... VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 PO 00000 ................. ✓ ✓ ................. ✓ ✓ ✓ Frm 00082 ................ ✓ ✓ ................ ✓ ✓ ✓ Fmt 4702 ................ ✓ ✓ ................ ✓ ✓ ✓ Sfmt 4702 E:\FR\FM\31AUP1.SGM 31AUP1 53772 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules TABLE 8—RECOMMENDED SPECIFIC MEASURES FOR DETERRING ESA-LISTED MARINE MAMMALS—Continued ESA-listed odontocetes Physical barriers: Rigid fencing in air .................................................................... Horizontal bars/bull rails ........................................................... Gates/closely spaced bars ........................................................ Containment booms/waterway barriers .................................... Swim step protectors ................................................................ Tactile: Projectiles: Paintballs and sponge grenades used with air rifle or airsoft gun ......................................................................................... Foam missiles/rounds with toy guns ........................................ Blunt objects with slingshot ...................................................... Manual: Crowder boards, blunt-tipped poles, brooms, mop handles, etc. ......................................................................................... Electrical: Electric fencing in air ................................................................ Electrical mats ........................................................................... Water: Hose, sprinkler, water gun ........................................................ ESA-listed mysticetes CI Beluga Insular FKW ................. ................. ................. ✓ ................. ................ ................ ................ ................ ................ ................. ✓ ................. ESA-listed pinnipeds SRKW Sperm whales HMS WSSL All others ................ ................ ................ ................ ................ ................ ................ ................ ✓ ................ ................ ................ ................ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ................ ................ ................ ................ ................ ................ ................ ✓ ................ ................ ✓ ................ ✓ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ................ ✓ ................ ✓ ✓ ✓ ✓ ................. ................. ................ ................ ................ ................ ................ ................ ................ ................ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ Acoustic Deterrents Impulsive: Explosive: Aerial pyrotechnics/fireworks; bird bangers; bird whistler/ screamers; bear bangers used with pencil launchers .......... Propane cannons ...................................................................... Explosive pest control devices (i.e., seal bombs, cracker shells, bird bombs, underwater firecrackers) ........................ Non-Explosive: Low-frequency, broadband devices .......................................... Pulsed power devices ............................................................... Banging objects underwater ..................................................... Banging objects in-air/passive acoustic deterrents .................. Non-impulsive: Underwater devices <170dB including acoustic alarms (i.e., pingers, transducers) ............................................................. Air horns, in-air noisemakers, sirens, whistles ......................... Predator sounds/alarm vocalizations using underwater speakers .......................................................................................... ................. ................. ................ ................ ................ ................ ................ ................ ................ ................ ................ ................ ✓ ✓ ✓ ✓ ................. ................ ................ ................ ................ ................ ................ ✓ ................. ................. ✓ ................. ................ ................ ................ ................ ................ ................ ................ ................ ................ ................ ✓ ................ ................ ................ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ................. ................ ................ ................ ................ ✓ ................ ✓ ................ ✓ ✓ ✓ ✓ ✓ ✓ ✓ ................ ................ ✓ ✓ ✓ ✓ ✓ Note: Cells with check marks indicate the specific measure is approved for that taxa or species; blank cells indicate those deterrents are not included as specific measures. List of Abbreviations in Table 8: CI—Cook Inlet; FKW—false killer whale; HMS—Hawaiian monk seal; SRKW—Southern Resident killer whale; WSSL—western Steller sea lion. khammond on DSKJM1Z7X2PROD with PROPOSALS Reporting Requirement NMFS is proposing a reporting requirement for any marine mammals that are observed to have been injured or killed in the course of deterrence under the guidelines and recommended specific measures. This requirement to submit a form either online or via postage-paid mailing is similar to the requirement for commercial fishermen to report marine mammals incidentally killed or injured during commercial fishing operations. This will provide information to evaluate whether the guidelines and recommended specific measures are working as intended for safely deterring marine mammals. If a marine mammal is observed injured or killed during or as a result of using a deterrent included in the guidelines or recommended specific measures, that injury or death must be reported to NMFS within 48 hours in order for the protection from liability in VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 section 101(a)(4)(B) to apply. If finalized, NMFS intends that, for commercial fishing vessel owners and operators, reporting requirements for deterrent-related mortality and injury of marine mammals will be integrated with existing reporting requirements under MMPA section 118(e). Specifically, NMFS would seek to revise the existing form (Office of Management and Budget (OMB) number 0648–0292) to request additional information regarding deterrent use during the next update per the collection of information requirements of the Paperwork Reduction Act (PRA). Reporting requirements are applicable to all vessel owners and operators regardless of commercial fishery category on the MMPA List of Fisheries (i.e., Category I, Category II, or Category III). For anyone other than a commercial fisherman engaging in deterrence, when reporting a mortality or injury under PO 00000 Frm 00083 Fmt 4702 Sfmt 4702 this provision the following information would be required: 1. The name and address of the person deterring the marine mammal(s); 2. The vessel name, and Federal, state, or tribal registration numbers of the registered vessel and/or the saltwater angler registration number if deterrence occurred during fishing; 3. A description of the fishery, including gear type and target, or of the property where the deterrence occurred; 4. A description of the deterrent including number of attempts/ deployments, specifications of devices, and any other relevant characteristics; 5. The species and number of each marine mammal incidentally killed or injured or a description (and/or photograph or video if available) of the animal(s) killed or injured if the species is unknown; 6. The disposition of the animal (e.g., injured or dead, type of wounds); E:\FR\FM\31AUP1.SGM 31AUP1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules 7. The date, time, and approximate geographic location where the mortality or injury occurred; and 8. Other relevant information such as the behavior of the animal in response to the deterrent, other protected species in the vicinity, etc. Prohibitions NMFS has determined that a number of deterrents and associated deterrence activities would result in significant adverse effects to marine mammals (Table 9). Specifically, NMFS finds that the deterrents listed in Table 9 are likely to result in mortality, serious injury, 53773 and/or permanent hearing loss. Additionally, several prohibitions are included to cross-reference with other pre-existing prohibitions concerning the particular species or other parts of the regulations relevant to marine mammals. Information on these prohibitions are detailed in Chapter 4 of the draft EA. TABLE 9—PROHIBITIONS ON DETERRING MARINE MAMMALS General Prohibitions Target a deterrent action at a marine mammal calf or pup. Striking a marine mammal’s head or blowhole when attempting to deter a marine mammal. Deploying or attempting to deploy a deterrent into the middle of a group of marine mammals. Feeding or attempting to feed a marine mammal in a manner prohibited by 50 CFR 226.3 even for the purposes of deterrence. Deterring or attempting to deter any marine mammal demonstrating signs of aggression, including charging or lunging, except when necessary to deter a marine mammal from endangering personal safety. Approaching certain ESA-listed marine mammals, including humpback whales in Alaska, North Atlantic right whales, western Steller sea lions, and killer whales in Washington, pursuant to 50 CFR 223.214 and 224.103. Mysticetes Odontocetes Pinnipeds Non-Acoustic Deterrents Vessel chasing. Using any chemical irritants, corrosive chemicals, and other taste deterrents to deter marine mammals. Sharp objects. Using a firearm, bow, or spear gun for deterring mysticetes. Vessel chasing. Using any chemical irritants, corrosive chemicals, and other taste deterrents to deter marine mammals. Sharp objects. Using a firearm, bow, or spear gun for deterring odontocetes. Patrol animals. Vessel chasing. Using any chemical irritants, corrosive chemicals, and other taste deterrents to deter marine mammals. Sharp objects. Using a firearm, except for bird bombs and cracker shells. Discharging a firearm at or within 100 yards (91.4 m) of a Steller sea lion west of 144° W longitude. Acoustic Deterrents Any impulsive explosives. Any impulsive explosives. Any non-impulsive device with an underwater source level ≥170 dB RMS, unless that device has been evaluated and approved by NMFS or via the NMFS Acoustic Deterrent Web Tool Any non-impulsive device with an underwater source level. ≥170 dB RMS, unless that device has been evaluated and approved by NMFS or via the NMFS Acoustic Deterrent Web Tool. khammond on DSKJM1Z7X2PROD with PROPOSALS Revising MMPA Provisions at §§ 229.4 and 229.5 NMFS proposes to revise 50 CFR 229.4 and 229.5 to ensure consistency between these guidelines and recommended specific measures and the existing regulations for commercial fisheries under the MMPA. NMFS proposes to clarify that persons engaged in Category I, II, and III fisheries must comply with all deterrence prohibitions and are encouraged to follow the guidelines and recommended specific measures in 50 CFR part 216 to safely deter marine mammals from damaging fishing gear, catch, or other private property or from endangering personal safety. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 Request for Public Comment NMFS requests public comment on these proposed guidelines, recommended specific measures, and prohibitions and the topics noted below. • Any deterrents not included in the proposed guidelines, recommended specific measures, or prohibitions that should be considered. • Specifications and typical deployment practices for all acoustic devices, but particularly the acoustic specifications for paintball guns and airsoft guns. • The design and usability of the NMFS Acoustic Deterrents Web Tool. • Underwater source level associated with cracker shells. PO 00000 Frm 00084 Fmt 4702 Sfmt 4702 Any impulsive explosives not included in the guidelines or specific measures. Seal bombs, underwater cracker shells, banging objects underwater, pulsed power devices, or low frequency broadband devices when visibility is <100m (e.g., at night, fog). Any non-impulsive device with an underwater source level ≥170 dB RMS, unless that device has been evaluated and approved by NMFS or via the NMFS Acoustic Deterrent Web Tool. • Signal duration associated with propane cannons, air rifles, low frequency broadband devices, and cowbells or other passive acoustic deterrents. • Silent intervals and/or signal durations associated with numerous underwater acoustic alarms (see Appendix B in EA for more detail). • Whether NMFS should consider only allowing ‘‘low impact’’ (i.e., 0.50 caliber) paintballs or allow both low and higher impact (i.e., 0.68 caliber) paintballs for pinnipeds. • Whether paint balls and sponge grenades should be allowed for endangered Hawaiian monk seals. E:\FR\FM\31AUP1.SGM 31AUP1 53774 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules • Whether the proposed specific measures for endangered Hawaiian monk seals are appropriate in the Hawaiian cultural context. • The impacts this rulemaking may have on tribal and Alaska Native communities. Paperwork Reduction Act References Cited A complete list of all references cited in this proposed rule can be found on the Federal e-Rulemaking Portal at www.regulations.gov/ #!docketDetail;D=NOAA-NMFS-20200109, and is available upon request from the NMFS Office of Protected Resources (see ADDRESSES). khammond on DSKJM1Z7X2PROD with PROPOSALS Classification The Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule would not have a significant economic impact on a substantial number of small entities. Any entity with combined annual fishery landing receipts less than $11 million is considered a small entity for purposes of the Regulatory Flexibility Act (50 CFR 200.2). Under this $11 million standard, all entities subject to this action are considered small entities. This action proposes guidelines for safely deterring marine mammals under NOAA’s jurisdiction (e.g., whales, dolphins, seals, and sea lions) and recommends specific measures for safely deterring marine mammals listed under the ESA. It also proposes prohibitions on deterrent methods that would have a significant adverse effect on marine mammals. The proposed rule does not require that property owners, commercial fishermen, or recreational fishermen deter marine mammals; if members of the public choose to deter marine mammals from endangering personal safety, damaging private or public property, or damaging fishing gear or catch consistent with the guidelines and recommended specific measures, those persons would be protected from liability under section 101(a)(4)(B) if a marine mammal is killed or seriously injured as a result of such deterrence. Therefore, the proposed rule would not have a significant economic impact on a substantial number of small entities. Because this proposed rule would not have a significant economic impact on a substantial number of small entities, an initial regulatory flexibility analysis is not required and was not prepared. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 This proposed rule contains a collection-of-information requirement subject to review and approval by OMB under the PRA. This requirement has been submitted to OMB for approval. Public reporting burden for (marine mammal mortality and injury report) is estimated to average 15 minutes per individual response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection information. Public comment is sought regarding: Whether this proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments on these or any other aspects of the collection of information to NMFS Office of Protected Resources at the ADDRESSES above, by email to OIRA_ Submission@omb.eop.gov, or fax to (202) 395–7285. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. Executive Order 12866, Regulatory Planning and Review, and Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs This proposed rule has been determined to be not significant for the purposes of Executive Orders 12866 and 13563. This rule is not expected to be an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866. National Environmental Policy Act NMFS prepared a draft EA for this proposed rule that discussed the potential impacts of this action on the environment. In addition to the no action alternative (status quo), one alternative (preferred and the basis of this proposed rule) is analyzed. NMFS identified Alternative 2, issuing national guidelines and specific measures for safely deterring marine PO 00000 Frm 00085 Fmt 4702 Sfmt 4702 mammals as well as prohibitions, as the preferred alternative for the proposed action. Under Alternative 2, NMFS would issue national guidelines prescribing methods and technologies to safely deter marine mammals, as well as specific measures for safely deterring endangered or threatened marine mammals, in a manner that would allow fishermen and property owners to protect their catch, fishing gear, and property without killing or seriously injuring marine mammals. Alternative 2 also includes prohibitions of certain deterrents that NMFS has determined would have a high adverse effect on marine mammals. Under the No Action alternative, Alternative 1, NMFS does not issue guidelines or specific measures for safely deterring marine mammals or promulgate prohibitions on deterrents that we have determined would have a high adverse effect on marine mammals, thereby maintaining the status quo. The MMPA requires NMFS to establish guidelines for safely deterring marine mammals and specific measures for ESA-listed marine mammals. Therefore, Alternative 1 is inconsistent with the statutory obligation under the MMPA to prescribe guidelines and specific measures for safely deterring marine mammals from endangering personal safety, and damaging property, fishing gear, or catch. The preferred alternative, Alternative 2, would not result in any high adverse impacts on the human environment, including protected marine populations, commercial fisheries, fishermen, or other regulatory programs. Additionally, certain deterrents that have a significant adverse effect on marine mammals would be prohibited. A copy of the draft EA is available from NMFS (see ADDRESSES). Endangered Species Act There are 22 marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA that may be affected by this rulemaking. There is also critical habitat designated for seven of those species where deterrents may be used. NMFS will consult internally pursuant to section 7 of the ESA on issuing these guidelines and recommended specific measures. NMFS will conclude the consultation prior to a determination on the issuance of the final rulemaking. Coastal Zone Management This proposed rule would not affect the land or water uses or natural resources of the coastal zone, as specified under section 307 of the Coastal Zone Management Act. E:\FR\FM\31AUP1.SGM 31AUP1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules List of Subjects 50 CFR Part 216 Administrative practice and procedure, Alaska, Exports, Fish, Fisheries, Fishing, Fishing vessels, Imports, Indians, Labeling, Marine mammals, Reporting and recordkeeping requirements. 50 CFR Part 229 Administrative practice and procedure, Confidential business information, Fisheries, Marine mammals, Reporting and recordkeeping requirements. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service. For the reasons set out in the preamble, 50 CFR parts 216 and 229 are 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: ■ § 216.111 Authority: 16 U.S.C. 1371 et seq., unless otherwise noted. 2. Add subpart J to part 216 to read as follows: ■ Subpart J—Authorization for Deterring Marine Mammals Under the Marine Mammal Protection Act of 1972 Sec. 216.110 Basis and purpose. 216.111 Scope. 216.112 Definitions. 216.113 Guidelines for safely deterring marine mammals. 216.114 Specific measures for deterring threatened and endangered marine mammals. 216.115 Prohibitions. 216.116 Reporting requirements. Subpart J—Authorization for Deterring Marine Mammals Under the Marine Mammal Protection Act of 1972 khammond on DSKJM1Z7X2PROD with PROPOSALS § 216.110 Basis and purpose. (a) The regulations in this subpart implement section 101(a)(4) of the Marine Mammal Protection Act (MMPA) of 1972, as amended, 16 U.S.C. 1371(a)(4). Provided deterrence actions do not result in death or serious injury, section 101(a)(4) provides exceptions to the prohibition against take of marine mammals for: (1) The owner of fishing gear or catch, or an employee or agent of such owner, to deter a marine mammal from damaging the gear or catch; (2) The owner of other private property, or an agent, bailee, or VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 employee of such owner, to deter a marine mammal from damaging private property; (3) Any person, to deter a marine mammal from endangering personal safety; or (4) A government employee, to deter a marine mammal from damaging public property. (b) This subpart provide guidelines and recommended specific measures designed to safely deter marine mammals without causing death or serious injury. While this subpart and recommended specific guidelines in this subpart are not required, individuals are protected from liability under section 101(a)(4)(B) for actions to deter marine mammals that are consistent with the guidelines or specific measures in this subpart even if a marine mammal is killed or seriously injured as a result of the action. (c) This subpart also prohibit the use of certain deterrent methods that the Agency has determined have a significant adverse effect on marine mammals. Scope. (a) The regulations in this subpart apply only to those marine mammals under the jurisdiction of the National Marine Fisheries Service (NMFS). (b) The regulations in this subpart do not apply to section 109(h) of the Marine Mammal Protection Act or the regulations promulgated in § 216.22. (c) The regulations in this subpart do not apply to take of a marine mammal if such taking is imminently necessary in self-defense or to save the life a person in immediate danger pursuant to section 101(c) of the Marine Mammal Protection Act. (d) The regulations in this subpart do not apply to tribal fishermen participating in a fishery pursuant to a treaty between the Indian tribe and the United States. (e) Lasers; underwater electrical fencing, nets, and barriers; electric prods; electroshock weapon technology, and any other deterrent not specifically identified for a given taxa are not included in the guidelines or recommended specific measures in this subpart for deterring marine mammals. Any person using such deterrents does so at their own risk and is liable for any resulting mortality or serious injury of a marine mammal. § 216.112 Definitions. In addition to the definitions in the Marine Mammal Protection Act and in § 216.3, and unless otherwise defined in this chapter, the terms in this chapter have the following meaning: PO 00000 Frm 00086 Fmt 4702 Sfmt 4702 53775 Acoustic alarm means any acoustic non-impulsive deterrent, including but not limited to pingers and transducers. Acoustic deterrent means any deterrent that produces sound either in air or underwater. Acoustic deterrent web tool means a web-based tool for a deterrent user to calculate the potential for a programmable non-impulsive device to induce onset of permanent threshold shift for marine mammals. If the device meets the evaluation criteria, a certificate documenting the device as specified would be issued. The evaluation criterion considers whether a deterrent has the potential to result in a permanent threshold shift (based on each marine mammal hearing group) at distances > 100 meters from the source after an hour of exposure. Aerial pyrotechnic means a device that creates an exothermic chemical reaction to make heat, light, gas, smoke, and/or sound in air, commonly referred to as fireworks in air. Approved means that the use of the deterrent method has been evaluated by NMFS and that any mortality or serious injury of a marine mammal resulting from the use of that method will not be a violation of the MMPA if the user has followed NMFS’s guidelines or recommendations for the use of that method in this subpart. Bird bomb means a pyrotechnic device, an impulsive explosive acoustic deterrent, which is designed to detonate in air and is discharged from a handheld launcher, similar to a starter pistol, using 6 mm 0.22 caliber firing caps to propel cartridges from a single-shot launcher. Chemo-sensory deterrent means any deterrent that pertains to the sensing of chemicals by taste, including nonregulated substances (e.g., hot sauce, vinegar) and chemical irritants and corrosive chemicals as defined by the Occupational Safety and Health Administration. Cracker shell means a pyrotechnic device, an impulsive explosive acoustic deterrent, which is discharged from a 12-gauge shotgun and detonates in air or just below the surface in water. Electrical deterrent means any deterrent that produces electricity as a means to deter a marine mammal upon contact. Explosive means the same as defined in 27 CFR 555.11, any chemical compound, mixture, or device, the primary or common purpose of which is to function by explosion. The term includes, but is not limited to, dynamite and other high explosives, black powder, pellet powder, initiating explosives, detonators, safety fuses, E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 53776 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules squibs, detonating cord, igniter cord, and igniters. Firearm means any weapon, such as a pistol or rifle, capable of firing a missile or projectile using an explosive as a propellant. Impulsive acoustic deterrent means any acoustic deterrent that produces sounds that are typically transient, brief, broadband, and consist of high peak sound pressure with rapid rise time and decay. Impulsive explosive acoustic deterrent means any acoustic impulsive deterrent that contains an explosive as defined in this section. This term includes explosive pest control devices, as that term is defined by the U.S. Department of Alcohol, Tobacco, and Firearms, such as bird bombs, cracker shells, seal bombs, and underwater firecrackers. Impulsive non-explosive acoustic deterrent means any acoustic impulsive deterrent that does not contain an explosive, including the following: (1) Banging pipes or other objects; (2) Low frequency, broadband deterrents; and (3) Pulsed power devices. Manually-deployed means any deterrent used by hand. Non-impulsive acoustic deterrent means any acoustic deterrent that produces sounds that can be broadband, narrowband, or tonal, brief or prolonged, continuous or intermittent, and typically do not have high peak sound pressure, including the following: (1) Acoustic alarms; (2) In-air noisemakers; (3) Predator sounds or marine mammal alarm vocalizations emitted by underwater speakers; and (4) Passive acoustic in-air deterrents. Physical barrier means any object that blocks passage by a marine mammal, including the following: (1) Containment booms, waterway barriers, and log booms; (2) Gates or closely spaced poles; (3) Horizontal bars such as bull rails; (4) Rigid fencing; and (5) Swim-step protectors. Safe speed means the same as defined under 33 CFR 83.06 and the International Regulations for Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602). Seal bomb means an impulsive explosive acoustic deterrent that is thrown by hand, contains no more than 40 grains of explosive material housed in a sealed cardboard tube, fitted with a waterproof fuse, and weighted to sink below the surface of the water before detonating underwater. Sling shot means a Y-shaped stick or frame with an elastic strap attached to the prongs, used for manually flinging small projectiles such as rocks. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 Tactile deterrent means any deterrent that physically comes in contact with a marine mammal, whether deployed manually or projected by an accompanying device, including the following: (1) Electrical deterrents; (2) Projectiles used with firearms; (3) Projectiles used with compressed air or gas; (4) Projectiles deployed with any other device; (5) Sharp or blunt objects, fixed in place or manually deployed; and (6) Water deterrents. Underwater firecracker means a pyrotechnic device that is an impulsive explosive acoustic deterrent, designed with a fuse and water-resistant casing that allows the device to detonate at the surface of the water or underwater. Underwater firecrackers are similar to seal bombs, but have a much shorter fuse. Visual deterrent means any deterrent that relies on a marine mammal’s visual acuity and perception, including the following: (1) Air dancers, flags, pinwheels, and streamers; (2) Bubble curtains; (3) Flashing lights or strobe lights; (4) Human attendants; (5) Patrol animals; (6) Predator shapes; (7) Vessel chasing; (8) Vessel patrolling; and (9) Unmanned aircraft systems. § 216.113 Guidelines for safely deterring marine mammals. (a) General. (1) The guidelines in this section for safely deterring marine mammals must be followed in order for the protection for liability, provided under section 101(a)(4)(B) of the MMPA to apply even if death or serious injury of a marine mammal results from such deterrence. The guidelines in this section apply to all marine mammals under NMFS’ jurisdiction that are not listed as threatened or endangered under the Endangered Species Act of 1973. (2) [Reserved] (b) Mysticetes. (1) Visual deterrents, including bubble curtains; flashing or strobe lights; predator shapes; vessel patrolling; and unmanned aircraft systems (UASs), are approved to deter mysticetes provided the user abides by the following: (i) Flashing or strobe lights must conform to any standards established by Federal law. (ii) Vessel patrolling of fishing gear is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable PO 00000 Frm 00087 Fmt 4702 Sfmt 4702 speed limitations, and fixed direction to avoid coming into contact with the whale. (iii) UAS are approved provided the user abides by the following: (A) Only vertical takeoff and landing aircraft are allowed; (B) Users shall fly UASs no closer than 5 m from an animal; (C) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; (D) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal; and (E) When deploying a UAS, users shall follow approach regulations for threatened and endangered marine mammals, including humpback whales in Alaska and North Atlantic right whales, pursuant to 50 CFR 223.214 and 224.103 and any other applicable approach regulations for marine mammals, and shall adhere to those approach requirements in the event any such requirement conflicts with the provisions of this subpart. (2) Physical barriers, including containment booms, waterway barriers, and log booms, are approved to deter mysticetes provided the user abides by the following: (i) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals. (ii) Lines in the water shall be kept stiff, taut, and non-looping. (iii) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (3) Tactile deterrents, including foam projectiles propelled by a toy gun; blunt objects, such as blunt tip poles and brooms, deployed manually; and water hoses, sprinklers, and water guns, are approved to deter mysticetes provided the user abides by the following: (i) Blunt objects must be deployed using a prodding motion. (ii) Tactile deterrents must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head and blowhole. (iii) Water deterrents must impact near an animal before striking the animal. (4) Impulsive non-explosive acoustic deterrents, including banging objects underwater, are approved for deterring mysticetes provided the user abides by the following: (i) The user must first conduct a visual scan in all directions for other marine mammals within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed. E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules (ii) If Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed. (iii) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 11 m from a mysticete with a minimum of 18 seconds between strikes. (5) Non-impulsive acoustic deterrents pursuant to paragraphs (b)(5)(i) and (ii) of this section are approved. (i) Acoustic alarms, predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170 dB root mean square sound pressure level (RMS) are approved for mysticetes; any such emission by underwater speakers capable of producing sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (ii) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (c) Odontocetes. (1) Visual deterrents, including bubble curtains, flashing or strobe lights, predator shapes, vessel patrolling, and UASs, are approved to deter odontocetes provided the user abides by the following: (i) Flashing or strobe lights must conform to any standards established by Federal law. (ii) Vessel patrolling of fishing gear is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable speed limitations, and fixed direction to avoid coming into contact with the odontocete. (iii) UAS are approved provided the user abides by the following: (A) Only vertical takeoff and landing aircraft are allowed; (B) Users shall fly UASs no closer than 5 m from an animal; (C) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; (D) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal; and VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 (E) When deploying a UAS from a motorized or non-motorized vessel, users shall follow approach regulations for killer whales in Washington at 50 CFR 224.103(e) and any other applicable approach regulations for marine mammals, and shall adhere to those approach requirements in the event any such requirement conflicts with the provisions of this subpart. (2) Physical barriers, including containment booms, waterway barriers, and log booms, are approved to deter odontocetes provided the user abides by the following: (i) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals. (ii) Lines in the water shall be kept stiff, taut, and non-looping. (iii) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (3) Tactile deterrents, including foam projectiles propelled by a toy gun; blunt objects, such as blunt tip poles and brooms, deployed manually; and water hoses, sprinklers, and water guns, are approved to deter odontocetes provided the user abides by the following: (i) Blunt objects must be deployed using a prodding motion. (ii) Tactile deterrents must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head and blowhole. (iii) Water deterrents must impact near an animal before striking the animal. (4) Impulsive non-explosive acoustic deterrents, including banging objects underwater are approved for deterring odontocetes, except for Dall’s porpoise, harbor porpoise, pygmy sperm whales, and dwarf sperm whales, provided the user abides by the following: (i) The user must first conduct a visual scan in all directions for other marine mammals within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed. (ii) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed. (iii) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 3 m from any other species of odontocete with a minimum of 18 seconds between strikes. PO 00000 Frm 00088 Fmt 4702 Sfmt 4702 53777 (5) Non-impulsive acoustic deterrents pursuant to paragraphs (c)(5)(i) and (ii) of this section are approved. (i) Acoustic alarms and predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170dB RMS are approved for odontocetes; any such emissions by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (ii) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (d) Pinnipeds. (1) Visual deterrents, including air dancers, flags, pinwheels, and streamers; bubble curtains; flashing or strobe lights; human attendants; predator shapes; vessel patrolling; and UASs, are approved to deter pinnipeds provided the user abides by the following: (i) Flags, pinwheels, and streamers must be installed and maintained to reduce the risk of entanglement or entrapment of marine mammals. (ii) Flashing or strobe lights must conform to any standards established by Federal law. (iii) Vessel patrolling of fishing gear or property is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable speed limitations, and fixed direction to avoid coming into contact with the pinniped. (iv) UAS are approved provided the user abides by the following: (A) Only vertical takeoff and landing aircraft are allowed; (B) Users shall fly UASs no closer than 5 m from an animal; (C) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; (D) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal; and (E) When deploying a UAS, users shall follow approach regulations for endangered Steller sea lions in 50 CFR 224.103(d) and any other applicable approach regulations for marine mammals, and shall adhere to those approach requirements in the event any E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS 53778 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules such requirement conflicts with the provisions of this subpart. (2) Physical barriers, including containment booms, waterway barriers, and log booms, are approved to deter pinnipeds provided the user abides by the following: (i) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals. (ii) Lines in the water shall be kept stiff, taut, and non-looping. (iii) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (3) Tactile deterrents pursuant to paragraphs (d)(3)(i) through (vi) of this section are approved. (i) Electric deterrents, including electric mats and electric fences are approved for pinnipeds provided the user abides by the following: (A) Electric mats shall not exceed 24V nominal; and (B) Electric fences shall be no more than 3000V and properly maintained to ensure required voltage and reduce the risk of entanglement or entrapment. (ii) Foam projectiles propelled by a toy gun are approved for deterring pinnipeds provided the foam projectile only strikes the posterior end of an animal’s body, taking care to avoid the animal’s head. (iii) Non-toxic and water-soluble paintballs deployed using paintball guns and low velocity sponge grenades deployed using hand-held launchers are approved for deterring pinnipeds provided the user abides by the following: (A) Paintballs must be deployed at a minimum distance of 14 m from a phocid and 3 m from an otariid; (B) Sponge grenades must be deployed at a minimum distance of 14 m from a phocid and 10 m from an otariid; and (C) The paintball or sponge grenade must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head. (iv) Blunt objects such as rocks deployed via sling shot are approved for deterring pinnipeds provided the user abides by the following: (A) Blunt objects must first impact near an animal before striking the animal; (B) Blunt objects must only strike the posterior end of an animal’s body taking care to avoid the animal’s head; and (C) Blunt objects deployed via sling shot must not be sharp or metallic. (v) Blunt objects, such as blunt tip poles and brooms, deployed manually, are approved for deterring pinnipeds VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 provided the user abides by the following: (A) Blunt objects must be deployed using a prodding motion; and (B) Blunt objects must only impact the chest or strike the posterior end of an animal’s body, taking care to avoid the animal’s head. (vi) Water deterrents, including hoses, sprinklers, and water guns, are approved to deter pinnipeds provided they impact near an animal before striking the posterior end of the animal’s body, taking care to avoid the animal’s head. (4) Impulsive explosive acoustic deterrents pursuant to paragraphs (d)(4)(i) through (vi) of this section are approved. (i) Aerial pyrotechnics, bird bangers, bird whistlers and screamers, and bear bangers used with pencil launchers, are approved for deterring pinnipeds provided they have a source level below 142 dB RMS and the user abides by the following: (A) Aerial pyrotechnics and bird bangers must detonate in air a minimum of 23 m from a phocid and a minimum of 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (B) Bird whistlers and screamers must detonate in air a minimum of 5 m from a phocid and a minimum of 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (C) Bear bangers deployed by pencil launchers must detonate in air a minimum of 2 m from a pinniped; users shall aim in the air above and between themselves and the pinniped; and (D) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, must be maintained onsite, and be available for inspection upon request by any authorized officer. (ii) Propane cannons are approved for deterring pinnipeds provided the propane cannon is deployed at least 2 m from a pinniped. (iii) Cracker shells discharged from a 12-gauge shotgun are approved for deterring pinnipeds, except for Steller sea lions in all areas west of 144° W longitude and east of 144° W longitude north of 55°49′22.00″ N latitude, provided the user abides by the following: (A) For airborne cracker shells, cracker shells must detonate in air at least 24 m away from a phocid and at least 2 m away from an otariid; if both taxa are present, the minimum distance for phocids shall apply. (B) For deploying cracker shells underwater: PO 00000 Frm 00089 Fmt 4702 Sfmt 4702 (1) The user must first conduct a visual scan in all directions for Dall’s porpoise, harbor porpoise, pygmy sperm whales and dwarf sperm whales within 100 m; if the user cannot see 100 m due to darkness or weather conditions, cracker shells shall not be deployed underwater; (2) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, cracker shells shall not be deployed underwater; (3) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, underwater cracker shells must detonate at least 3 m away from a phocid and at least 2 m away from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (4) Cracker shells must detonate behind the target animal to deter from the rear and must not strike the animal or detonate in the path of or toward the head of the animal; and (5) Users are permitted to deploy cracker shells only once every 6 minutes and must repeat the visual scan in all direction as required in this subsection prior to each deployment of cracker shells. (C) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, must be maintained onsite, and be available for inspection upon request by any authorized officer. (iv) Bird bombs discharged from a shot launcher pistol are approved provided the user abides by the following: (A) The bird bombs must detonate in air at least 8 m away from a phocid and at least 2 m away from an otariid; if both taxa are present, the minimum distance for phocids shall apply; and (B) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, must be maintained onsite, and be available for inspection upon request by any authorized officer. (v) Underwater firecrackers are approved for deterring pinnipeds, except for Steller sea lions in all areas west of 144° W longitude and east of 144° W longitude north of 55°49′22.00″ N latitude, provided the user abides by the following: (A) The underwater firecracker must detonate a minimum of 2 m behind a pinniped, meaning the firecracker must not strike the animal or detonate in front of the animal; and (B) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, E:\FR\FM\31AUP1.SGM 31AUP1 53779 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules must be maintained onsite, and be available for inspection upon request by any authorized officer. (vi) Seal bombs are approved for deterring pinnipeds, except for Steller sea lions in all areas west of 144° W longitude and east of 144° W longitude north of 55°49′22.00″ N latitude, provided the user abides by the following: (A) The user must first conduct a visual scan in all directions for cetaceans within 100 m before deploying a seal bomb; if the user cannot see 100 m due to darkness or weather conditions, a seal bomb shall not be deployed; (B) If cetaceans are sighted within 100 m of the user, a seal bomb shall not be deployed; (C) If no cetaceans are sighted within 100 m of the user, a seal bomb must detonate at least 20 m away from a phocid and at least 2 m away from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (D) Users are permitted to deploy only one seal bomb per 3-minute interval and must repeat the visual scan in all directions as required in this subsection prior to each deployment; (E) Users must manually deploy seal bombs behind an animal by the appropriate minimum distance described in paragraph (d)(4)(vi)(C) of this section, meaning the seal bomb must detonate behind an animal and not strike an animal or detonate in front of (ii) Banging objects in air, such as bells and in-air passive acoustic deterrents, are approved for deterring pinnipeds provided the user maintains a minimum distance of at least 24 m from a phocid and at least 2 m from otariid; if both taxa are present, the minimum distance for phocids shall apply. (iii) Low frequency, broadband devices and pulsed power devices with the following specifications are approved for deterring pinnipeds provided the user abides by the following: (A) The user must first conduct a visual scan in all directions for cetaceans within 100 m before deploying low frequency, broadband devices and pulsed power devices; if the user cannot see 100 m due to darkness or weather conditions, low frequency, broadband devices and pulsed power devices shall not be deployed; (B) If cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices shall not be deployed; and (C) If no cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices must maintain the appropriate silent interval and engage the devices according to the minimum distances specified in Table 1 to this paragraph (d)(5)(iii)(C); if both phocids and otariids are present, the minimum distance for phocids shall apply. the animal, in the direction the animal is traveling, or in the middle of a group of animals; and (F) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, must be maintained onsite, and be available for inspection upon request by any authorized officer. (5) Impulsive non-explosive acoustic deterrents pursuant to paragraphs (d)(5)(i) thorough (iii) of this section are approved. (i) Banging objects underwater is approved for deterring pinnipeds provided the user abides by the following: (A) The user must first conduct a visual scan in all directions for other marine mammals within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed; (B) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed; and (C) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 8 m away from a phocid and at least 2 m away from an otariid with a minimum of 18 seconds between strikes; if both taxa are present, the minimum distance for phocids shall apply. khammond on DSKJM1Z7X2PROD with PROPOSALS TABLE 1 TO PARAGRAPH (d)(5)(iii)(C)—MINIMUM SILENT INTERVALS AND DISTANCES FOR LOW FREQUENCY, BROADBAND AND PULSED POWER DEVICES Deterrent Source level (RMS SPL) Minimum silent interval between signals Phocid pinniped minimum distance Pulsed Power Device .................................... 220 dB ....................... 1 meter ........................ 1 meter. Low frequency, broadband device ................ Low frequency, broadband device ................ Low frequency, broadband device ................ 219 dB ....................... 215 dB ....................... 208 dB ....................... 1200 seconds (20 minutes). 300 seconds ............. 120 seconds ............. 30 seconds ............... 5 meters ...................... 5 meters ...................... 4 meters ...................... 1 meter. 1 meter. 1 meter. (6) Non-impulsive acoustic deterrents pursuant to paragraphs (d)(6)(i) through (iii) of this section are approved. (i) Acoustic alarms, predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170 dB RMS are approved for pinnipeds; any such emission by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (ii) Any non-impulsive acoustic deterrent capable of producing VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (iii) Air horns, in-air noisemakers, sirens, and whistles with source levels <158 dB RMS are approved for deterring pinnipeds provided the user abides by the following: PO 00000 Frm 00090 Fmt 4702 Sfmt 4702 Otariid pinniped minimum distance (A) Air horns must be deployed at least 4 m away from a phocid and at least 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (B) In-air noisemakers must be deployed at least 5 m away from a phocid and at least 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (C) Sirens must be deployed at least 2 m away from a phocid and from an otariid; and (D) Whistles must be deployed at least 3 m away from a phocid and at least 2 m from an otariid; if both taxa are E:\FR\FM\31AUP1.SGM 31AUP1 53780 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules Segment. (i) Visual deterrents pursuant to paragraphs (c)(2)(i)(A) through (E) of this section are approved. § 216.114 Specific measures for deterring (A) Bubble curtains are approved. threatened and endangered marine (B) Flashing or strobe lights are mammals. approved provided the lights conform to (a) General. This section includes any standards established by Federal specific measures that are approved for law. deterring certain threatened and (C) Predator shapes are approved. endangered marine mammals. The (D) Vessel patrolling of fishing gear is specific measures in this section must approved provided the user maintains a be followed in order for the protection consistent and safe speed, in from liability provided by MMPA compliance with any and all applicable section 101(a)(4)(A) to apply should the speed limitations, and fixed direction to death or serious injury of a marine avoid coming into contact with the mammal listed as endangered or whale. (E) UAS are approved provided the threatened under the Endangered user abides by the following: Species Act result from the deterrence (1) Only vertical takeoff and landing action. (b) Mysticetes. All deterrents included aircraft are allowed; (2) Users shall fly UASs no closer in the guidelines in § 216.113(b) are than 5 m from an animal; allowed for deterring mysticetes listed (3) UAS altitude adjustments shall be as threatened or endangered under the made away from animals or conducted Endangered Species Act subject to the slowly when above animals; and specified use conditions identified in (4) A UAS shall hover over a target § 216.113(b). animal only long enough to deter the (c) Odontocetes—(1) Beluga whales, Cook Inlet Distinct Population Segment. animal and shall not come in direct contact with the animal. (i) Visual deterrents pursuant to (ii) Blunt objects, such as blunt tip paragraphs (c)(1)(i)(A) through (E) of poles and brooms, deployed manually this section are approved. as well as water hoses, sprinklers, and (A) Bubble curtains are approved. water guns are approved tactile (B) Flashing or strobe lights are approved provided the lights conform to deterrents provided the user abides by the following: any standards established by Federal (A) Blunt objects must be deployed law. using a prodding motion; (C) Predator shapes are approved. (B) Tactile deterrents must only strike (D) Vessel patrolling of fishing gear is approved provided the user maintains a the posterior end of an animal’s body, taking care to avoid the animal’s head consistent and safe speed, in and blowhole; and compliance with any and all applicable (C) Water deterrents must impact near speed limitations, and fixed direction to an animal before striking the animal. avoid coming into contact with the (3) Killer whales, Southern Resident whale. Distinct Population Segment. (i) Visual (E) UAS are approved provided the deterrents pursuant to paragraphs user abides by the following: (c)(3)(i)(A) through (E) of this section are (1) Only vertical takeoff and landing approved. aircraft are allowed; (A) Bubble curtains are approved. (2) Users shall fly UASs no closer (B) Flashing or strobe lights are than 5 m from an animal; approved provided the lights conform to (3) UAS altitude adjustments shall be any standards established by Federal made away from animals or conducted law. slowly when above animals; and (C) Predator shapes are approved. (4) A UAS shall hover over a target (D) Vessel patrolling of fishing gear is animal only long enough to deter the approved provided the user maintains a animal and shall not come in direct consistent and safe speed, in contact with the animal. compliance with any and all applicable (ii) Water hoses, sprinklers, and water speed limitations, and fixed direction to guns are approved tactile deterrents avoid coming into contact with the provided the user abides by the whale. following: (E) UAS are approved provided the (A) Tactile deterrents must only strike user abides by the following: the posterior end of an animal’s body, (1) Only vertical takeoff and landing taking care to avoid the animal’s head aircraft are allowed; and blowhole; and (2) Users shall fly UASs no closer (B) Water deterrents must impact near than 5 m from an animal; (3) UAS altitude adjustments shall be an animal before striking the animal. (2) False killer whales, Main Hawaiian made away from animals or conducted slowly when above animals; Islands Insular Distinct Population khammond on DSKJM1Z7X2PROD with PROPOSALS present, the minimum distance for phocids shall apply. VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 PO 00000 Frm 00091 Fmt 4702 Sfmt 4702 (4) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal; and (5) When deploying a UAS from a motorized or non-motorized vessel, users shall follow approach regulations for killer whales in Washington at 50 CFR 224.103(e), and shall adhere to those approach requirements in the event any such requirement conflicts with the provisions of this subpart. (ii) Containment booms, waterway barriers, and log booms are approved physical barriers provided the user abides by the following: (A) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals; (B) Lines in the water shall be kept stiff, taut, and non-looping; and (C) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (iii) Foam projectiles propelled by a toy gun and water hoses, sprinklers, and water guns, are approved tactile deterrents provided the user abides by the following: (A) Tactile deterrents must strike the posterior end of an animal’s body, taking care to avoid the animal’s head and blowhole; and (B) Water deterrents must impact near an animal before striking the animal. (iv) Impulsive non-explosive acoustic deterrents pursuant to paragraph (c)(3)(iv)(A) of this section are approved. (A) Banging objects underwater is approved for deterring Southern Resident killer whales provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for other odontocetes within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed; (2) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed; and (3) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur no closer than required approach distances pursuant to 50 CFR 224.103(e) with a minimum of 18 seconds between strikes. (B) [Reserved] (v) Non-impulsive acoustic deterrents pursuant to paragraphs (c)(3)(v)(A) and (B) of this section are approved. (A) Acoustic alarms and predator sounds and alarm vocalizations of E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules marine mammals emitted by underwater speakers with source levels <170 dB RMS are approved; any such emission by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (B) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (4) Sperm whales. (i) Visual deterrents pursuant to paragraphs (c)(4)(i)(A) through (E) of this section are approved. (A) Bubble curtains are approved. (B) Flashing or strobe lights are approved provided the lights conform to any standards established by Federal law. (C) Predator shapes are approved. (D) Vessel patrolling of fishing gear is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable speed limitations, and fixed direction to avoid coming into contact with the whale. (E) UAS are approved provided the user abides by the following: (1) Only vertical takeoff and landing aircraft are allowed; (2) Users shall fly UASs no closer than 5 m from an animal; (3) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; and (4) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal. (ii) Containment booms, waterway barriers, and log booms are approved physical barriers provided the user abides by the following: (A) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals; (B) Lines in the water shall be kept stiff, taut, and non-looping; and (C) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (iii) Foam projectiles propelled by a toy gun; blunt objects, such as blunt tip poles, brooms, deployed manually; and water hoses, sprinklers, and water guns, VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 are approved tactile deterrents provided the user abides by the following: (A) Blunt objects must be deployed using a prodding motion; (B) Tactile deterrents must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head and blowhole; and (C) Water deterrents must impact near an animal before striking the animal. (iv) Impulsive non-explosive acoustic deterrents pursuant to paragraph (c)(4)(iv)(A) of this section are approved. (A) Banging objects underwater is approved for deterring sperm whales provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for other odontocetes within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed; (2) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed; and (3) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 3 m from the whale with a minimum of 18 seconds between strikes. (B) [Reserved] (v) Non-impulsive acoustic deterrents pursuant to paragraphs (c)(4)(v)(A) and (B) of this section are approved. (A) Acoustic alarms and predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170 dB RMS are approved; any such emission by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (B) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (d) Pinnipeds. All deterrents included in the guidelines in § 216.113(d) are recommended specific measures for deterring pinnipeds listed as threatened or endangered under the Endangered Species Act identified in that subsection PO 00000 Frm 00092 Fmt 4702 Sfmt 4702 53781 except for the Hawaiian monk seal and western Distinct Population of Steller sea lions in paragraphs (d)(1) and (2) of this section. (1) Hawaiian monk seal. (i) Air dancers, flags, pinwheels, and streamers; bubble curtains; flashing or strobe lights; human attendants; predator shapes; vessel patrolling; and UASs, are approved visual deterrents for Hawaiian monk seals provided the user abides by the following: (A) Flags, pinwheels, and streamers must be installed and maintained to reduce the risk of entanglement or entrapment of marine mammals. (B) Flashing or strobe lights must conform to any standards established by Federal law. (C) Vessel patrolling of fishing gear or property is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable speed limitations, and fixed direction to avoid coming into contact with a Hawaiian monk seal. (D) UAS are approved provided the user abides by the following: (1) Only vertical takeoff and landing aircraft are allowed; (2) Users shall fly UASs no closer than 5 m from an animal; (3) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; and (4) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal. (ii) Containment booms, waterway barriers, and log booms are approved physical barriers to deter Hawaiian monk seals provided the user abides by the following: (A) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of seals; (B) Lines in the water shall be kept stiff, taut, and non-looping; and (C) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (iii) Tactile deterrents pursuant to paragraphs (d)(1)(iii)(A) through (E) of this section are approved. (A) Electric mats and electric fences are approved for Hawaiian monk seals provided the user abides by the following: (1) Electric mats shall not exceed 24V nominal; and (2) Electric fences shall be no more than 3000V and properly maintained to ensure required voltage and reduce the risk of entanglement or entrapment. (B) Foam projectiles propelled by a toy gun are approved for deterring E:\FR\FM\31AUP1.SGM 31AUP1 53782 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules Hawaiian monk seals provided the foam projectile only strikes the posterior end of an animal’s body, taking care to avoid the animal’s head. (C) Non-toxic and water-soluble paintballs deployed using paintball guns and low velocity sponge grenades deployed using hand-held launchers are approved for deterring Hawaiian monk seals provided the user abides by the following: (1) Paintballs must be deployed at a minimum distance of 14 m from a phocid and 3 m from an otariid; (2) Sponge grenades must be deployed at a minimum distance of 14 m from a phocid and 10 m from an otariid; and (3) The paintball or sponge grenade must strike the posterior end of an animal’s body, taking care to avoid the animal’s head. (D) Blunt objects, such as blunt tip poles, brooms, deployed manually, are approved for deterring Hawaiian monk seals provided the user abides by the following: (1) Blunt objects must be deployed using a prodding motion; and (2) Blunt objects must only impact the chest or strike the posterior end of an animal’s body, taking care to avoid the animal’s head. deterrents, such as aluminum cans, are approved for deterring Hawaiian monk seals provided the user maintains a distance of at least 2 m from the seal. (C) Low frequency, broadband devices and pulsed power devices with the following specifications are approved for deterring Hawaiian monk seals provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for cetaceans within 100 m before deploying low frequency, broadband devices and pulsed power devices; if the user cannot see 100 m due to darkness or weather conditions, low frequency, broadband devices and pulsed power devices shall not be deployed; (2) If cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices shall not be deployed; (3) If no cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices must maintain the appropriate silent interval and engage the devices according to the minimum distances specified in Table 2 to this paragraph (d)(1)(iv)(C)(3); if both phocids and otariids are present, the minimum distance for phocids shall apply. (E) Water hoses, sprinklers, and water guns are approved to deter Hawaiian monk seals provided the user impacts an area near an animal before striking the posterior end of the animal’s body, taking care to avoid the animal’s head. (iv) Impulsive non-explosive acoustic deterrents pursuant to paragraphs (d)(1)(iv)(A) through (C) of this section are approved. (A) Banging objects underwater is approved for deterring Hawaiian monk seals provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for other marine mammals within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed; (2) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed; and (3) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 8 m away from a Hawaiian monk seal. (B) Banging objects in air, such as bells, and in-air passive acoustic khammond on DSKJM1Z7X2PROD with PROPOSALS TABLE 2 TO PARAGRAPH (d)(1)(iv)(C)(3)—MINIMUM SILENT INTERVALS AND DISTANCES FOR LOW FREQUENCY, BROADBAND AND PULSED POWER DEVICES Deterrent Source level (RMS SPL) Minimum silent interval between signals Phocid pinniped minimum distance Pulsed Power Device .................................... 220 dB ....................... 1 meter ........................ 1 meter. Low frequency, broadband device ................ Low frequency, broadband device ................ Low frequency, broadband device ................ 219 dB ....................... 215 dB ....................... 208 dB ....................... 1,200 seconds (20 minutes). 300 seconds ............. 120 seconds ............. 30 seconds ............... 5 meters ...................... 5 meters ...................... 4 meters ...................... 1 meter. 1 meter. 1 meter. (v) Non-impulsive acoustic deterrents pursuant to paragraphs (d)(1)(v)(A) through (C) of this section are approved. (A) Acoustic alarms, predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170 dB RMS are approved for Hawaiian monk seals; any such emission by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (B) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (C) Air horns, in-air noisemakers, sirens, and whistles with source levels <158 dB RMS are approved for deterring Hawaiian monk seals provided the user abides by the following: (1) Air horns must be deployed at least 4 m away from a Hawaiian monk seal; (2) In-air noisemakers must be deployed at least 5 m away from a Hawaiian monk seal; (3) Sirens must be deployed at least 2 m away from a Hawaiian monk seal; and PO 00000 Frm 00093 Fmt 4702 Sfmt 4702 Otariid pinniped minimum distance (4) Whistles must be deployed at least 3 m away from a Hawaiian monk seal. (2) Steller sea lion, western Distinct Population Segment (DPS). The specific measures in this paragraph (d)(2) apply in Alaska where western DPS Steller sea lions commonly occur (all areas west of 144° W longitude and east of 144° W longitude north of 55°49′22.00″ N) latitude unless otherwise specified in this section. (i) Air dancers, flags, pinwheels, and streamers; bubble curtains; flashing or strobe lights; human attendants; predator shapes; vessel patrolling; and UASs, are approved visual deterrents to deter western DPS Steller sea lions provided the user abides by the following: (A) Flags, pinwheels, and streamers must be installed and maintained to E:\FR\FM\31AUP1.SGM 31AUP1 khammond on DSKJM1Z7X2PROD with PROPOSALS Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules reduce the risk of entanglement or entrapment of marine mammals. (B) Flashing or strobe lights must conform to any standards established by Federal law. (C) Vessel patrolling of fishing gear or property is approved provided the user maintains a consistent and safe speed, in compliance with any and all applicable speed limitations, and fixed direction to avoid coming into contact with the pinniped. (D) UAS are approved provided the user abides by the following: (1) Only vertical takeoff and landing aircraft are allowed; (2) Users shall fly UASs no closer than 5 m from an animal; (3) UAS altitude adjustments shall be made away from animals or conducted slowly when above animals; (4) A UAS shall hover over a target animal only long enough to deter the animal and shall not come in direct contact with the animal; and (5) When deploying a UAS, users shall follow approach regulations for endangered Steller sea lions in 50 CFR 224.103(d) and any other applicable approach regulations for marine mammals, and shall adhere to those approach requirements in the event any such requirement conflicts with the provisions of this subpart. (ii) Containment booms, waterway barriers, and log booms are approved physical barriers to deter western Steller sea lions provided the user abides by the following: (A) All containment booms, waterway barriers, and log booms shall be constructed, installed, and maintained to reduce the risk of entanglement or entrapment of marine mammals; (B) Lines in the water shall be kept stiff, taut, and non-looping; and (C) Booms/barriers must not block major egress and ingress points in channels, rivers, passes, and bays. (iii) Tactile deterrents pursuant to paragraphs (d)(2)(iii)(A) through (F) of this section are approved. (A) Electric mats and electric fences are approved for western Steller sea lions provided the user abides by the following: (1) Electric mats shall not exceed 24V nominal; and (2) Electric fences shall be no more than 3000V and properly maintained to ensure required voltage and reduce the risk of entanglement or entrapment. (B) Foam projectiles propelled by a toy gun are approved for deterring western Steller sea lions provided the foam projectile only strikes the posterior end of an animal’s body, taking care to avoid the animal’s head. (C) Non-toxic and water-soluble paintballs deployed using paintball VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 guns and low velocity sponge grenades deployed using hand-held launchers are approved for deterring western Steller sea lions provided the user abides by the following: (1) Paintballs must be deployed at a minimum distance of 14 m from a phocid and 3 m from an otariid; (2) Sponge grenades must be deployed at a minimum distance of 14 m from a phocid and 10 m from an otariid; and (3) The paintball or sponge grenade must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head. (D) Blunt objects such as rocks deployed via sling shot are approved for deterring western Steller sea lions provided the user abides by the following: (1) Blunt objects must first impact near an animal before striking an animal. (2) Blunt objects must only strike the posterior end of an animal’s body, taking care to avoid the animal’s head; and (3) Blunt objects deployed via sling shot must not be sharp or metallic. (E) Blunt objects, such as blunt tip poles, brooms, deployed manually, are approved for deterring western Steller sea lions provided the user abides by the following: (1) Blunt objects must be deployed using a prodding motion; and (2) Blunt objects must only impact the chest or strike the posterior end of an animal’s body, taking care to avoid the animal’s head. (F) Water hoses, sprinklers, and water guns, are approved to deter western Steller sea lions provided the user impacts near an animal before striking the posterior end of the animal’s body, taking care to avoid the animal’s head. (iv) Certain airborne impulsive explosive acoustic deterrents are allowed for western Steller sea lions east of 144° W longitude and north of 55°49′22.00″ N latitude as specified in paragraphs (d)(2)(iv)(A) and (B) of this section: (A) Aerial pyrotechnics, bird bangers, bird whistlers and screamers, and bear bangers used with pencil launchers, are approved provided they have a source level below 142 dB RMS and the user abides by the following: (1) Aerial pyrotechnics and bird bangers must detonate in air a minimum of 23 m from a phocid and a minimum of 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply. (2) Bird whistlers and screamers must detonate in air a minimum of 5 m from a phocid and a minimum of 2 m from an otariid; if both taxa are present, the PO 00000 Frm 00094 Fmt 4702 Sfmt 4702 53783 minimum distance for phocids shall apply. (3) Bear bangers deployed by pencil launchers must detonate in air a minimum of 2 m from a pinniped; users shall aim in the air above and between themselves and the pinniped. (4) All necessary permits or authorizations from local, state, and/or Federal authorities have been obtained, must be maintained onsite, and be available for inspection upon request by any authorized officer. (B) Propane cannons are approved for deterring pinnipeds provided the propane cannon is deployed at least 2 m from a western Steller sea lion. (v) Impulsive non-explosive acoustic deterrents pursuant to paragraphs (d)(2)(v)(A) through (C) of this section are approved. (A) Banging objects underwater is approved for deterring western Steller sea lions provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for other marine mammals within 100 m; if the user cannot see 100 m due to darkness or weather conditions, banging objects underwater is not allowed; (2) If Dall’s porpoise, harbor porpoise, pygmy sperm whales or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater is not allowed; and (3) If no Dall’s porpoise, harbor porpoise, pygmy sperm whales, or dwarf sperm whales are sighted within 100 m of the user, banging objects underwater must occur at least 8 m away from a phocid and at least 2 m away from an otariid with a minimum of 18 seconds between strikes; if both taxa are present, the minimum distance for phocids shall apply. (B) Banging objects in air, such as bells and in-air passive acoustic deterrents, are approved for deterring western Steller sea lions provided the user maintains a distance of at least 2 m from the animal; if phocids are present the user must maintain a distance of at least 24 m from the phocid. (C) Low frequency, broadband devices and pulsed power devices with the following specifications are approved for deterring western Steller sea lions provided the user abides by the following: (1) The user must first conduct a visual scan in all directions for cetaceans within 100 m before deploying low frequency, broadband devices and pulsed power devices; if the user cannot see 100 m due to darkness or weather conditions, low frequency, broadband devices and pulsed power devices shall not be deployed; E:\FR\FM\31AUP1.SGM 31AUP1 53784 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules (2) If cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices shall not be deployed; (3) If no cetaceans are sighted within 100 m of the user, low frequency, broadband devices and pulsed power devices must maintain the appropriate silent interval and engage the devices according to the minimum distances specified in Table 3 to this paragraph (d)(1)(v)(C)(3); if both phocids and otariids are present, the minimum distance for phocids shall apply. khammond on DSKJM1Z7X2PROD with PROPOSALS TABLE 3 TO PARAGRAPH (d)(1)(v)(C)(3)—MINIMUM SILENT INTERVALS AND DISTANCES FOR LOW FREQUENCY, BROADBAND AND PULSED POWER DEVICES Deterrent Source level (RMS SPL) Minimum silent interval between signals Phocid pinniped minimum distance Pulsed Power Device .................................... 220 dB ....................... 1 meter ........................ 1 meter. Low frequency, broadband device ................ Low frequency, broadband device ................ Low frequency, broadband device ................ 219 dB ....................... 215 dB ....................... 208 dB ....................... 1200 seconds (20 minutes). 300 seconds ............. 120 seconds ............. 30 seconds ............... 5 meters ...................... 5 meters ...................... 4 meters ...................... 1 meter. 1 meter. 1 meter. (vi) Non-impulsive acoustic deterrents pursuant to paragraphs (d)(2)(vi)(A) through (C) of this section are approved. (A) Acoustic alarms, predator sounds and alarm vocalizations of marine mammals emitted by underwater speakers with source levels <170 dB RMS are approved for western Steller sea lions; any such emission by underwater speakers capable of producing sounds ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use such underwater speakers. (B) Any non-impulsive acoustic deterrent capable of producing underwater sound ≥170 dB RMS must be evaluated and approved via the NMFS Acoustic Deterrent Web Tool before any attempt is made to use the device. If the device meets the evaluation criteria, the user will receive a certificate authorizing use of the device as specified. The certificate must be maintained onsite and be available for inspection upon request by any authorized officer. (C) Air horns, in-air noisemakers, sirens, and whistles with source levels <158 dB RMS are approved for deterring western Steller sea lions provided the user abides by the following: (1) Air horns must be deployed at least 4 m away from a phocid and at least 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (2) In-air noisemakers must be deployed at least 5 m away from a phocid and at least 2 m from an otariid; if both taxa are present, the minimum distance for phocids shall apply; (3) Sirens must be deployed at least 2 m away from a phocid and from an otariid; and (4) Whistles must be deployed at least 3 m away from a phocid and at least 2 m from an otariid; if both taxa are VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 present, the minimum distance for phocids shall apply. § 216.115 Prohibitions. It is unlawful for any person subject to the jurisdiction of the United States to: (a) Target a deterrent action at a marine mammal calf or pup; (b) Strike a marine mammal’s head or blowhole when attempting to deter a marine mammal; (c) Deploy or attempt to deploy a deterrent into the middle of a group of marine mammals; (d) Feed or attempt to feed a marine mammal as defined at § 216.3 for the purposes of deterrence; (e) Deter or attempt to deter a marine mammal demonstrating any sign of aggression, including charging or lunging, except when necessary to deter a marine mammal from endangering human safety; (f) Approach certain marine mammals listed under the Endangered Species Act pursuant to 50 CFR 223.214 and 224.103, including humpback whales in Alaska, North Atlantic right whales, western Steller sea lions, and killer whales in Washington, and approach other marine mammals pursuant to any other applicable approach regulations such as those at § 216.19 and 15 CFR 922.184; (g) Discharge a firearm to deter any marine mammals under NMFS’ jurisdiction, except as provided in § 216.113(d)(4)(iii) and (iv); (h) Discharge a firearm at or within 100 yards (91.4 m) of a Steller sea lion west of 144° W longitude per 50 CFR 224.103(d)(1)(i); (i) Use a powerhead, as defined at 50 CFR 600.10, to deter a marine mammal; (j) Use, for deterring a marine mammal, any firearm, airsoft gun, or any other deterrent included in this section that has been altered from its original manufactured condition; PO 00000 Frm 00095 Fmt 4702 Sfmt 4702 Otariid pinniped minimum distance (k) Use any projectiles deployed with a crossbow, bow, or spear gun to deter a marine mammal; (l) Use any sharp objects to deter a marine mammal; (m) Use patrol animals, such as guard dogs, for deterring pinnipeds; (n) Chase any marine mammals with a vessel; (o) Use any chemical irritants, corrosive chemicals, and other taste or smell deterrents to deter marine mammals; (p) Deploy explosives for deterring a marine mammal, except as provided in §§ 216.113(d)(4) and 216.114(d)(2)(iv); (q) Deploy or attempt to deploy explosives without all valid and necessary local, state, and Federal permits onboard or onsite; (r) Deploy any underwater impulsive deterrents, including seal bombs, underwater cracker shells, banging objects, pulsed power devices, and low frequency broadband devices if visibility <100 m; (s) Deploy underwater cracker shells or use banging objects underwater if a Dall’s porpoise, harbor porpoise, pygmy sperm whale, or dwarf sperm whale has been seen within 100 m in any direction during a visual scan prior to deployment; (t) Deploy seal bombs, pulsed power devices, or low frequency broadband devices if any cetaceans have been seen within 100 m in any direction during a visual scan prior to deployment; (u) Deploy any non-impulsive acoustic deterrent, including underwater speakers, capable of producing source levels ≥170 dB RMS unless the certificate of approval from the NMFS Acoustic Deterrent Web Tool is onboard or onsite; (v) Tamper with NMFS Acoustic Deterrent Web Tool or falsify an approval certificate for any nonimpulsive acoustic deterrent capable of E:\FR\FM\31AUP1.SGM 31AUP1 Federal Register / Vol. 85, No. 169 / Monday, August 31, 2020 / Proposed Rules producing underwater sound ≥170 dB RMS; (w) Fail to comply with the reporting requirements in § 216.116; and (x) Provide false information to the Assistant Administrator when reporting an injured or dead marine mammal pursuant to § 216.116. § 216.116 Reporting requirements. khammond on DSKJM1Z7X2PROD with PROPOSALS (a) Any person engaged in deterring a marine mammal must report all observed mortalities and injuries of marine mammals pursuant to any such deterrence under the guidelines or specific measures in this subpart. Reports must be sent within 48 hours after the end of a fishing trip or within 48 hours of an occurrence of mortality or injury. Reports must be submitted to the Assistant Administrator and must provide: (1) The name and address of the person deterring the marine mammal(s); (2) The vessel name, and Federal, state, or tribal registration numbers of the registered vessel and/or the saltwater angler registration number if deterrence occurred during fishing; (3) A description of the fishery, including gear type and target catch, or of the property where the deterrence occurred; VerDate Sep<11>2014 16:36 Aug 28, 2020 Jkt 250001 (4) A description of the deterrent, including number of attempts/ deployments, specifications of devices, and any other relevant characteristics; (5) The species and number of each marine mammal killed or injured in the course of deterrence or a description of the animal(s) killed or injured if the species is unknown; (6) The disposition of the animal (e.g., injured or dead, type of wounds); (7) The date, time, and approximate geographic location of such occurrence; and (8) Any other relevant information such as the behavior of the animal in response to the deterrent, other protected species in the area, etc. (b) [Reserved] PART 229—AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE MAMMAL PROTECTION ACT OF 1972 3. The authority citation for part 229 continues to read as follows: ■ Authority: 16 U.S.C. 1361 et seq.; § 229.32(f) also issued under 16 U.S.C. 1531 et seq. 4. In § 229.4, revise paragraph (i) to read as follows: ■ PO 00000 Frm 00096 Fmt 4702 Sfmt 9990 53785 § 229.4 Requirements for Category I and II fisheries. * * * * * (i) Deterrence. Persons engaged in a Category I or II fishery must comply with all deterrence prohibitions in 50 CFR 216.115 and are encouraged to follow the guidelines and recommended specific measures in 50 CFR part 216 to safely deter marine mammals from damaging fishing gear, catch, or other private property or from endangering personal safety. * * * * * ■ 5. In § 229.5, revise paragraph (e) to read as follows: § 229.5 Requirements for Category III fisheries. * * * * * (e) Deterrence. Persons engaged in a Category III fishery must comply with all deterrence prohibitions in 50 CFR 216.115 and are encouraged to follow the guidelines and recommended specific measures in 50 CFR part 216 to safely deter marine mammals from damaging fishing gear, catch, or other private property or from endangering personal safety. * * * * * [FR Doc. 2020–18718 Filed 8–28–20; 8:45 am] BILLING CODE 3510–22–P E:\FR\FM\31AUP1.SGM 31AUP1

Agencies

[Federal Register Volume 85, Number 169 (Monday, August 31, 2020)]
[Proposed Rules]
[Pages 53763-53785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18718]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Parts 216 and 229

[Docket No. 200819-0222]
RIN 0648-BG55


Guidelines for Safely Deterring Marine Mammals

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

ACTION: Proposed rule.

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SUMMARY: The Marine Mammal Protection Act (MMPA) allows for specified 
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 directs the 
Secretary of Commerce, through NOAA's NMFS, to publish a list of 
``guidelines'' for use in safely deterring marine mammals under NMFS' 
jurisdiction and to recommend ``specific measures,'' which may be used 
to nonlethally deter marine mammals listed under the Endangered Species 
Act (ESA). While the guidelines and specific measures are not 
mandatory, the MMPA provides protection from liability under the MMPA 
for take resulting from such deterrence measures by specifying that any 
actions taken to deter marine mammals that are consistent with the 
guidelines or specific measures are not a violation of the act. NMFS 
has not evaluated these deterrents for effectiveness. This rulemaking 
also includes prohibitions on certain deterrent methods that NMFS has 
determined, using the best available scientific information, would have 
a significant adverse effect on marine mammals.

DATES: Comments must be received by October 30, 2020.

ADDRESSES: You may submit comments on this document, identified by 
NOAA-NMFS-2020-0109, by either of the following methods:
    Electronic Submission: Submit all electronic public comments via 
the Federal e-Rulemaking Portal:
    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0109;
    2. Click the ``Comment Now!'' icon, complete the required fields;
    3. Enter or attach your comments.
    Mail: Submit written comments to Chief, Marine Mammal and Sea 
Turtle Conservation Division, Office of Protected Resources, NMFS, 1315 
East-West Highway, Silver Spring, MD 20910.
    Instructions: 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 by NMFS. 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.), confidential business 
information, or otherwise sensitive information submitted voluntarily 
by the sender will be publicly accessible. NMFS will accept anonymous 
comments (enter N/A in the required fields if you wish to remain 
anonymous).
    The NMFS Acoustic Deterrents Web Tool is available and accessible 
via the internet at: https://jmlondon.shinyapps.io/NMFSAcousticDeterrentWebTool/.
    Copies of the draft Environmental Assessment (EA) prepared in 
support of this action are available and accessible via the internet 
at: https://www.regulations.gov/.
    Written comments regarding the burden-hour estimates or other 
aspects of the collection-of-information requirements contained in this 
proposed rule may be submitted to NMFS Office of Protected Resources 
and by email to [email protected] or fax to (202) 395-7285.

FOR FURTHER INFORMATION CONTACT: Kristy Long, Office of Protected 
Resources, 301-427-8402; Amy Scholik-Schlomer, Office of Protected 
Resources, 301-427-8402. Individuals who use a telecommunications 
device for the hearing impaired may call the Federal Information Relay 
Service at 1-800-877-8339 between 8 a.m. and 4 p.m. Eastern time, 
Monday through Friday, excluding Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    The deterrence provisions of the MMPA (16 U.S.C. 1361 et seq.) 
provide an exception to otherwise prohibited acts, allowing specified 
persons to deter a marine mammal from damaging fishing gear and catch, 
damaging personal or public 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 
developed a process and policy to distinguish serious from non-serious 
injuries (https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-protection-act-policies-guidance-and-regulations#distinguishing-serious-from-non-serious-injury-of-marine-mammals).
    Specifically, MMPA section 101(a)(4)(A) allows the owner of fishing 
gear or catch, the owner of private property, or an employee or agent 
of such owner (``specified persons''), to deter marine mammals from 
damaging fishing gear or 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. The appropriate use of 
deterrents is allowed under these circumstances so long as any such use 
does not result in mortality or serious injury of a marine mammal. 
Section 101(a)(4)(A) does not allow the use of deterrents by any other 
person or entity or for any other purpose than those expressly 
enumerated.
    MMPA section 101(a)(4)(B) directs the Secretary of Commerce, 
through NMFS, to publish a list of guidelines for use in safely 
deterring marine mammals and to recommend specific measures which may 
be used to non-lethally deter marine mammals listed as endangered or 
threatened under the ESA. Section 101(a)(4)(B) provides protection from 
liability from take, including mortality and serious injury, resulting 
from actions to deter marine mammals that are consistent with such 
guidelines and specific measures by specifying that such actions are 
not a violation of the MMPA. Compliance with the recommended specific 
measures would not necessarily provide protection from

[[Page 53764]]

liability under the ESA for the taking of ESA-listed marine mammals 
(see Classification section). The statute uses the terms ``guidelines'' 
and recommended ``specific measures,'' which indicates that these 
measures are not mandatory and only need to be complied with if an 
individual or entity wanted protection from liability under section 
101(a)(4)(B) in the event of a marine mammal serious injury or 
mortality. Although they are guidelines and recommended specific 
measures, the statute nevertheless requires that the guidelines be 
published in the Federal Register and developed after notice and an 
opportunity for public comment.
    Although the guidelines and recommended specific measures are not 
mandatory, as described above, MMPA section 101(a)(4)(C) allows that 
NMFS may prohibit certain deterrence methods 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.
    Specified persons may choose to deter marine mammals using 
deterrents that are not included in the guidelines, recommended 
specific measures, or prohibitions. However, if a marine mammal is 
killed or seriously injured as a result of deterrence actions outside 
those specified in the guidelines or specific measures, the protection 
from liability provided in section 101(a)(4)(B) would not apply.
    To implement the statutory provisions and inform development of 
these guidelines, NMFS initially solicited public input on which 
deterrents to evaluate and consider for approval (79 FR 74710, December 
16, 2014). NMFS requested 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 would not result in mortality or serious 
injury, and any other implementation considerations. We received a 
range of comments and requests from non-governmental organizations, 
private sector companies and product developers, fishery management 
councils, commercial and recreational fishermen, and representatives of 
the merchant shipping and maritime trade industry. For example, 
multiple respondents urged NMFS to ensure any prohibitions and 
guidelines were not too specific as to limit the ability to develop new 
technologies or products and to consider geographical and species 
variation inherent in the deterrent process. There were also general 
requests for NMFS to consider including acoustic devices along with the 
range of deterrents currently in use so commercial and recreational 
fishermen would have advice on and multiple options to deter different 
species under a variety of conditions, and potential protection from 
liability for take resulting from their use. NMFS considered 
information from this public comment period to assist with determining 
which methods and technologies are appropriate for these guidelines.
    Separate from the provisions provided in the MMPA section 101(a)(4) 
for non-lethally deterring marine mammals, section 109(h) allows 
designated Federal, state, and local government officials or employees 
to take marine mammals in the course of their duties. Specifically, 
section 109(h) states that nothing in MMPA Title I or Title IV prevents 
a Federal, state, or local government official or employee, or person 
designated under section 112(c) from taking, in the course of their 
duties, a marine mammal in a humane manner (including euthanasia) if 
such taking is for the: (1) Protection or welfare of the mammal, (2) 
protection of the public health and welfare, or (3) nonlethal removal 
of nuisance animals. Any takes occurring under the authority of section 
109(h) must be reported to the NMFS within 60 days pursuant to 50 CFR 
216.22(b). These proposed guidelines and recommended specific measures 
pertain to members of the public deterring marine mammals for reasons 
outlined in MMPA section 101(a)(4) and do not apply to situations 
covered under section 109(h), such as deterring marine mammals from a 
hazardous area (e.g., an oil spill).
    As a result of the protections afforded by the MMPA since 1972, 
many species of marine mammals, certain stocks of pinnipeds (seals and 
sea lions) in particular, are increasing in abundance in the United 
States. Many marine mammals feed mostly on fish. In recent years, 
frustration by fishermen and property owners stemming from conflicts 
with marine mammals has increased, particularly as some populations of 
marine mammals have increased in certain areas. In many areas, harbor 
seals and gray seals haul out on beaches commonly used by humans, 
increasing the chances of negative interactions between marine mammals 
and humans. Additionally, pinnipeds (e.g., California sea lions, 
Steller sea lions) regularly haul out on docks, sometimes damaging the 
docks and posing a threat to humans trying to access their property.
    In some fisheries, marine mammals regularly remove catch or bait 
(depredation) from fishing gear, and some species (primarily pinnipeds) 
take fish from aquaculture pens. Over 30 species of odontocetes 
(toothed whales, dolphins, porpoises) are known to engage in 
depredation. For example, some individuals in populations of sperm, 
killer, false killer, and pilot whales around the world have become 
adept at removing a variety of fish species from longline hooks, a 
behavior also exhibited by other toothed whales and dolphins in a wide 
range of fisheries. Other species take catch from trawl or gill nets. 
Regardless of gear type, depredation can lead to marine mammal bycatch, 
with some marine mammals dying or becoming seriously injured. 
Depredation can significantly affect the volume and quality of 
commercial and recreational catch and may contribute to fishermen 
taking retaliatory actions, such as intentionally shooting and killing 
marine mammals. NMFS has numerous stranding records documenting animals 
killed or injured by lethal take from gunshots, particularly of 
bottlenose dolphins in the NMFS Southeast Region and California sea 
lions in the NMFS West Coast Region. These proposed guidelines and 
recommended specific measures are intended to provide tools for 
fishermen and property owners to protect fishing gear, catch, and 
property, while also reducing intentional lethal takes and serious 
injuries of marine mammals. Further, this action would reduce unlawful 
take by prohibiting the use of those deterrent methods that we have 
determined will result in significant adverse effects to marine 
mammals.

Tribal Treaty Fishing

    Several Indian tribes located in the Pacific Northwest have entered 
into treaties with the United States that expressly reserve the right 
to fish at their usual and accustomed grounds and stations. As 
explained in prior notices, these tribal treaty fisheries are conducted 
under the authority of the treaties and managed by the relevant tribe. 
See, e.g., 2010 NMFS List of Fisheries (74 FR 58859, November 16, 
2009). In recognition of the sovereign authority of treaty fishing 
tribes over the conduct of their fisheries, NMFS proposes that the 
specific prohibitions in these regulations not apply to tribal 
fishermen participating in a treaty fishery. The guidelines may

[[Page 53765]]

nevertheless serve as a resource for treaty tribes and tribal fishermen 
to inform methods for safely deterring marine mammals in the conduct of 
treaty fisheries and would still provide protection from liability for 
take resulting from deterrence actions taken consistent with these 
guidelines and recommended specific measures.

Alaska Natives

    NMFS intends that this proposed rule will have no impact or effect 
on Alaska Native take of marine mammals for subsistence purposes or the 
creating and selling of authentic Alaska Native articles of handicrafts 
and clothing, as provided under MMPA section 101(b).

Practice Avoidance Before Deterrence

    NMFS strongly encourages fishermen, private property owners, and 
government officials to practice avoidance techniques prior to 
attempting to deter any marine mammal. Avoiding interactions is the 
safest method for preventing death or serious injury to marine mammals 
and the most definitive way to minimize risk to human safety. Fishermen 
can modify fishing operations to avoid or minimize interactions with 
marine mammals by adjusting tow and haul times or duration of sets. 
Specific areas known or thought to be occupied by marine mammals should 
be avoided and all effort should be made to avoid setting or placing 
fishing gear and catch in areas where marine mammals are sighted. 
Trawling, trolling, or hauling gear in the vicinity of marine mammals 
should also be avoided and must cease when transiting through a group 
of marine mammals to avoid unlawful take. NMFS strongly encourages 
fishermen to avoid discarding fish in the vicinity of marine mammals or 
known haulout locations, particularly given the prohibition on feeding 
marine mammals found at 50 CFR 216.3. Finally, while observing marine 
mammals, NMFS strongly encourages compliance with all regional viewing 
guidelines to further reduce impacts to marine mammals.

Gear Modifications To Deter Marine Mammals

    Gear modifications are any alterations to existing fishing gear 
intended to reduce bycatch and/or depredation. Simple gear 
modifications include changing the material or the characteristics of 
gear used (e.g., weak circle hooks), changing the color of the gear, 
reducing line length or strength, and adding materials to gear. 
Pursuant to MMPA section 101(a)(4), fishermen do not need authorization 
to modify gear and/or fishing practices to protect fishing gear, catch, 
or bait from marine mammals, so long as any such modified gear and/or 
fishing practices do not result in the death or serious injury of a 
marine mammal and are consistent with the prohibitions included in this 
rulemaking; therefore, NMFS did not consider modifications to fishing 
gear as a deterrent.

Types of Deterrents

    In general, deterrents fall into two categories, ``non-acoustic'' 
or ``acoustic.'' Non-acoustic deterrents target senses other than 
hearing to deter a marine mammal. Non-acoustic deterrents could be 
visual, physical barriers, electrical, chemosensory, or tactile. Visual 
deterrent methods rely on a marine mammal's visual acuity and 
perception of a change in their immediate environment to elicit a 
flight or avoidance behavior. Physical barriers prevent an animal from 
gaining access to an area. Chemosensory deterrents used on marine 
mammals often focus on taste to induce an aversion response. In 
addition to chemical repellents applied through consumption mechanisms, 
chemicals used for predator control can also be aerosolized or applied 
through an inhalation route of entry. Tactile deterrent methods 
typically involve physically creating pain or discomfort to induce 
aversion with the goal of eliciting flight behaviors (Scordino 2010). 
Tactile deterrents can be propelled through the use of a multitude of 
devices to extend the deterrent potential beyond what would be possible 
with manual use (e.g., throwing or striking by hand).
    Acoustic deterrents, which can produce sound underwater or in air, 
fall into two main categories, impulsive and non-impulsive, based on 
their potential to affect marine mammal hearing sensitivity (i.e., 
cause a permanent threshold shift, (PTS)). Impulsive acoustic 
deterrents (e.g., seal bombs, firecrackers, banging pipes, bird 
bangers) produce sounds that are typically transient, brief (less than 
1 second), broadband (produce sound over a wide frequency range), and 
consist of high peak sound pressure with rapid rise time and rapid 
decay (peak sound increases and dissipates quickly) and generally have 
an increased capacity to affect marine mammal hearing sensitivity. Some 
impulsive deterrents contain explosives (e.g., underwater firecrackers) 
while others do not (e.g., banging pipes). Non-impulsive acoustic 
deterrents (e.g., pingers, predator sounds, air horns) typically only 
have small fluctuations in decibel (dB) level, making them less likely 
to affect hearing sensitivity compared to impulsive sources (Southall 
et al. 2007; NMFS 2018; Southall et al. 2019).
    For a description of each deterrent evaluated and how it is used, 
please see the draft EA prepared under the National Environmental 
Policy Act (NEPA) for this action (see ADDRESSES).

    Table 1--Types of Non-Acoustic and Acoustic Deterrents Evaluated
------------------------------------------------------------------------
 
------------------------------------------------------------------------
                         Non-Acoustic Deterrents
------------------------------------------------------------------------
Visual....................................  Air dancers, flags,
                                             pinwheels, streamers.
                                            Bubble curtains.
                                            Flashing or strobe lights.
                                            Human attendants.
                                            Lasers.
                                            Patrol animals.
                                            Predator shapes.
                                            Vessel chasing.
                                            Vessel patrolling.
                                            Unmanned aircraft systems.
Physical barriers.........................  Anti-predator netting.
                                            Containment booms/waterway
                                             barriers.
                                            Gates/closely spaced bars.
                                            Horizontal bars.
                                            Rigid fencing in air.
                                            Swim step protectors.
Chemo-sensory.............................  Chemical irritants.
                                            Corrosive chemicals.
                                            Taste deterrents.
Tactile:
  Electrical..............................  Cattle prods.
                                            Electric fencing in air.
                                            Electric fencing in water.
                                            Electrical mats.
                                            Electrical nets.
                                            Electroshock weapon
                                             technology.
                                            Underwater electric
                                             barriers.
  Projectiles used with firearms..........  Bullets, plastic bullets,
                                             rubber bullets, shotgun
                                             shells with rubber shot or
                                             balls, BBs, shot pellets,
                                             beanbag rounds, sponge
                                             grenades.
  Projectiles used with compressed air/gas  BBs, shot pellets,
                                             paintballs, sponge
                                             grenades, nails, spears.
  Other projectiles.......................  Arrows, darts, spears, foam
                                             missiles/rounds, spears,
                                             rocks.
  Fixed sharp objects.....................  Nails, barbed wire.
  Manual--sharp...........................  Gaffs, hooks, sharp-ended
                                             poles, etc.
  Manual--blunt...........................  Crowder boards, blunt-tipped
                                             poles, brooms, mop handles,
                                             butt of a spear gun, etc.
  Water...................................  Hose, sprinkler, water gun.
------------------------------------------------------------------------
                           Acoustic Deterrents
------------------------------------------------------------------------
Impulsive:

[[Page 53766]]

 
  Explosive...............................  Fireworks; bird bangers;
                                             bird whistler/screamers;
                                             pencil launchers/bear
                                             bangers; propane cannons;
                                             explosive pest control
                                             devices (i.e., seal bombs,
                                             cracker shells, bird bombs,
                                             underwater firecrackers).
  Non-Explosive...........................  Banging objects/passive
                                             acoustic in-air deterrents;
                                             low-frequency, broadband
                                             devices; pulsed power
                                             devices.
Non-impulsive.............................  Acoustic alarms (i.e.,
                                             pingers, transducers); in-
                                             air noisemakers; predator
                                             sounds/alarm vocalizations
                                             using underwater speakers.
------------------------------------------------------------------------

Evaluation Criteria and Considerations

Acoustic Deterrents

    In analyzing acoustic deterrents, we considered each deterrent's 
potential to cause acoustic injury (i.e., PTS) as well as direct 
physical, non-acoustic injury to the lungs and gastrointestinal (GI) 
tract associated with underwater explosives. The potential for acoustic 
deterrents to cause acoustic injury was evaluated based upon marine 
mammal hearing groups using the PTS onset thresholds in NMFS' Technical 
Guidance (NMFS 2018); see the EA for a list of species included in each 
of the five hearing groups. We developed an evaluation criterion to 
compare to these thresholds.
    Our evaluation criterion considered whether a deterrent had the 
potential to result in PTS at distances >100 meters (m) from the source 
after an hour of exposure. We chose a 100-m distance (i.e., isopleth or 
a line drawn through all points having equal sound pressure or exposure 
levels) for two reasons. First, 100 m is a minimum displacement 
distance for various devices and is a typical distance within which 
some of these devices are deployed from one another (reviewed in 
McGarry et al. 2020, see Tables 2 and 3). Second, it represents a 
reasonable distance at which one can sight the most susceptible and 
difficult to sight marine mammal hearing group (High Frequency (HF) 
cetaceans; Dall's porpoise, harbor porpoise, dwarf sperm whales, and 
pygmy sperm whales) with high probability using unaided vision. Based 
on Roberts et al. (2016), the probability of sighting harbor porpoises 
with unaided vision is high (i.e., detection probability ~ 1) out to 
around 100 m, after which sighting probability begins to steeply 
decline. Given this, we conservatively chose to use a 100-m isopleth as 
it provides reasonable assurance that an acoustic deterrent user would 
be able to sight the most susceptible and difficult to sight marine 
mammal species and, as such, all other less susceptible more easily 
sighted marine mammal species. This is consistent with a recent review 
of acoustic deterrents by McGarry et al. (2020), who determined a 100-m 
criterion was appropriate to evaluate deterrents for the likelihood of 
exposure resulting in PTS onset.
    The 1-h exposure duration represents a reasonable maximum exposure 
duration expected for marine mammals from a deterrent device within a 
24-hour (h) period (e.g., exposure can be continuous or consist of 
multiple shorter exposures throughout the day). Our analysis used twice 
the duration used by the McGarry et al. 2020 evaluation (i.e., 30-
minutes) to account for the potential for multiple exposures to occur 
within a day. The PTS onset distances associated with the 1-h exposure 
duration represents the distance from the deterrent a marine mammal 
would have to remain for an hour to potentially experience PTS. If an 
animal occurs farther from the deterrent, PTS is unlikely to occur. If 
an animal is closer than 100 m, the likelihood of PTS would depend both 
on how close the animal gets to the deterrent and how long the animal 
remains within this isopleth.
    To account for incidental exposure of non-targeted marine mammal 
species, we analyzed all acoustic deterrents for potential acoustic 
injury impacts to every marine mammal hearing group, regardless of 
whether the hearing group included targeted or non-targeted marine 
mammals. Thus, we evaluated specifications in consideration of the most 
susceptible hearing group.
    Acoustic devices were evaluated based on their specific acoustic 
characteristics, such as source level (underwater: dB re: 1 micropascal 
([micro]Pa) at 1 m and airborne: dB re: 20 [micro]Pa at 1 m), frequency 
range (i.e., kilohertz (kHz)), signal duration, and silent intervals 
between signals (inter-pulse interval or minimum silent interval 
between signals). To determine isopleths, practical geometric spreading 
(15 log R) was used to model transmission loss through the environment 
for all underwater sources. The only exceptions were seal bombs and 
airborne devices, where it was considered more appropriate to rely upon 
spherical spreading (20 log R) (Attenborough 2014; Wiggins et al. 
2019). Sound typically propagates through airborne environments via 
spherical spreading (Attenborough 2014), and recent field measurements 
of seal bomb detonations underwater support using spherical spreading 
to describe transmission loss (Wiggins et al. 2019).
    NMFS evaluated source levels for various deterrents to determine 
the maximum source level that would not exceed our 100-m, 1-h 
criterion. All underwater devices with source levels up to 170 dB, and 
a maximum 54 percent duty cycle (i.e., producing sound for less than 32 
minutes within an hour), met the evaluation criterion.
    For acoustic deterrents that involve the use of underwater 
explosives, NMFS also evaluated the potential for severe lung injury, 
slight lung injury, and gastrointestinal tract injury (DoN 2017). 
Quantitative mortality criteria (severe lung injury) resulting from 
exposure to sound are only available for underwater explosives. Lung 
injury thresholds are dependent on animal mass (i.e., smaller mass 
individuals are more susceptible than those with higher mass). 
Therefore, we evaluated underwater impulsive explosive acoustic 
deterrents based on conservative assumptions: (1) That the animal was 
at the surface, and (2) the smallest mass representative calf or pup in 
each hearing group was exposed (DoN 2017). Thus, when evaluating 
explosive deterrents, we considered the criteria (lung, GI tract, or 
PTS) resulting in the largest isopleth.
    Some acoustic deterrents have specifications that can be 
manipulated or adjusted by the user. For example, a user can control 
the distance a deterrent is deployed from a marine mammal and/or the 
time (i.e., silent interval) between deployments. Additionally, 
deterrents may have multiple or programmable settings (e.g., duty 
cycle, silent interval between signals, and sound type/variety). For 
manually-deployed deterrents (e.g., hand held devices where the silent 
interval between signals can be controlled), we determined the minimum 
silent interval needed to meet the evaluation criterion (i.e., onset of 
PTS >100-m, 1-h), for a single deterrent device, for all marine mammal 
hearing groups. For programmable devices capable of producing output 
with a range of characteristics (e.g., adjustable source level or 
produced a broad range of frequencies), we evaluated the device by 
using the maximum potential value for each characteristic, recognizing 
that many combinations of specifications are possible, and determined 
the minimum silent interval, for a given device, needed to meet the 
evaluation criterion

[[Page 53767]]

for all marine mammal hearing groups. This allowed us to evaluate the 
maximum potential impact of a given deterrent as well as how any 
deterrents capable of exceeding our criterion may be deployed in ways 
that are safe and within our criterion.
    In addition to acoustic injury, NMFS also considered secondary 
impacts (e.g., chronic stress, displacement from important habitat, 
decreased fitness).

Non-Acoustic Deterrents

    We evaluated non-acoustic deterrents for the likelihood they would 
impact marine mammals and the potential severity of those impacts. 
Severity was assessed as lethal (mortality or serious injury) or sub-
lethal including whether the impact was primary (e.g., physical trauma, 
trauma, toxicity) or secondary (e.g., infection, chronic stress, 
displacement from important habitat, decreased fitness). We evaluated 
whether a potential injury would be serious according to the NMFS 
Policy for Distinguishing Serious from Non-Serious Injury of Marine 
Mammals (77 FR 3233; January 23, 2012). Deterrents not likely to result 
in mortality or serious injury were included in the guidelines or 
recommended specific measures.

Other Considerations

    To evaluate some categories of deterrents mentioned below, NMFS 
relied on information on effects on humans and other animals (e.g., 
cows) when that information was not available for marine mammals. For 
visual strobe or flashing lights, NMFS proposes to include lights that 
are used for humans because pinnipeds and likely cetaceans have similar 
visual acuity to humans (Scholtyssek et al. 2007, Levenson and 
Schusterman 1999). For electric fencing in air, NMFS proposes to 
include a maximum of 3,000 volts (V), consistent with industry 
standards for deterring livestock with skin 1 millimeter (mm) thick, as 
pinnipeds generally have thicker skin and underlying blubber when 
compared to livestock (e.g., Steller sea lion skin has been measured as 
5 mm (Jonker 1996)). For electric mats, NMFS proposes to include low 
voltage 24V direct current as that is safe for humans. For using 
paintballs and sponge grenades to deter pinnipeds, NMFS considered 
typical deployment practices for humans (not shooting another person 
with paintballs within 3 m and sponge grenades within 10 m) as well as 
the acoustic impacts (e.g., minimum of 14 m for paintballs and sponge 
grenades meets our evaluation criterion for phocids (earless seals) 
related to PTS for air rifles). In general, there are two types of 
paintballs; those considered ``low impact'' (i.e., 0.50 caliber) and 
those considered standard (i.e., 0.68 caliber). The recommended minimum 
age for playing paintball varies (sometimes as young as 6 years old) 
and low impact paintballs are often recommended for children younger 
than 10-12 years old; therefore, the expected impacts to pinnipeds 
would be less than those experienced by human children because 
pinnipeds are much larger. Sponge grenades can be deployed using low 
velocity hand held launchers or high velocity automatic, mounted 
launchers. NMFS is proposing to include low velocity sponge grenades 
(40 x 46 mm) deployed using hand held launchers.
    All airborne acoustic deterrents evaluated had source levels <142 
dB for impulsive deterrents and <158 dB for non-impulsive deterrents, 
all of which meet the acoustic evaluation criterion. As noted above, 
NMFS proposes to include underwater acoustic deterrents with minimum 
distances and silent intervals to ensure that the acoustic evaluation 
criterion are met.

Proposed Guidelines for Deterring Marine Mammals

    NMFS proposes the following guidelines (Tables 2 and 3) to deter 
marine mammals that are not listed under the ESA; these guidelines 
include deterrents for marine mammals not listed as threatened or 
endangered. For using deterrents to target each of the three taxa, 
mysticetes (baleen whales), odontocetes (toothed whales, dolphins, 
porpoises), and pinnipeds (seals and sea lions), the proposed 
guidelines include types of deterrents within a particular category of 
deterrents. Additionally, we include associated implementation 
provisions that must be followed to allow the individual to take 
advantage of the protection from liability provided in section 
101(a)(4)(B); this is particularly noteworthy for acoustic deterrents 
where minimum distances and/or a minimum silent intervals are 
specified. For acoustic deterrents, the minimum distances and silent 
intervals vary according to each marine mammal hearing group: High-
frequency cetaceans (HF), mid-frequency (MF) cetaceans, low-frequency 
(LF) cetaceans, phocid pinnipeds (earless seals), and otariid pinnipeds 
(eared seals and sea lions).

General Guidelines

    Anyone attempting to deter a marine mammal should consider their 
own personal safety, that of others in the vicinity, and the safety of 
the marine mammal. When operating a vessel, captains should use extreme 
caution when maneuvering around marine mammals, as they may surface in 
unexpected places. If a marine mammal approaches a vessel, the captain 
should put the engine in neutral to avoid striking the animal. 
Deterrent users must cease using a deterrent if an animal demonstrates 
any sign of aggression (e.g., charging, lunging), as this could 
compromise human safety as well as marine mammal safety. If deterrent 
attempts are unsuccessful, NMFS strongly encourages users to 
temporarily suspend the activity (e.g., fishing), giving the animal a 
chance to leave the area before resuming that activity.
    NMFS has not evaluated these deterrents for effectiveness. NMFS 
recommends that users start with less impactful techniques first (e.g., 
visual, physical barriers, in-air noisemakers, water deterrents), 
before using more impactful deterrents (e.g., tactile--projectiles, 
explosives). Additionally, animal size should be taken into 
consideration. More impactful deterrents should be limited to adult 
animals (e.g., adult male Steller sea lion on a dock that is 
endangering personal safety). Users should take into consideration the 
size of the animal with respect to human safety, particularly when 
using certain deterrents in close proximity to animals (e.g., crowder 
boards).

Summary of Guidelines

         Table 2--List of Non-Acoustic Deterrents for Non-ESA Marine Mammals Included in the Guidelines
----------------------------------------------------------------------------------------------------------------
                                           Mysticetes              Odontocetes                Pinnipeds
----------------------------------------------------------------------------------------------------------------
Visual.............................  Bubble curtains.......  Bubble curtains.......  Bubble curtains.
                                     Flashing or strobe      Flashing or strobe      Air dancers, flags,
                                      lights.                 lights.                 pinwheels, and streamers.
                                     Predator shapes.......  Predator shapes.......  Flashing or strobe lights.
                                     Vessel patrolling.....  Vessel patrolling.....  Human attendants.
                                     Unmanned Aircraft       Unmanned Aircraft       Predator shapes.
                                      Systems.                Systems.

[[Page 53768]]

 
                                                                                     Vessel patrolling.
                                                                                     Unmanned Aircraft Systems.
Physical barriers..................  Containment booms,      Containment booms,      Containment booms, waterway
                                      waterway barriers,      waterway barriers,      barriers, and log booms.
                                      and log booms.          and log booms.
                                                                                     Gates or closely spaced
                                                                                      poles.
                                                                                     Horizontal bars/bull rails.
                                                                                     Rigid fencing in air.
                                                                                     Swim step protectors.
Tactile--Electrical................  None..................  None..................  Electric fencing (in air).
                                                                                     Low voltage electric mats.
Tactile--Projectile................  Foam projectiles with   Foam projectiles with   Foam projectiles with toy
                                      toy guns.               toy guns.               guns.
                                                                                     Paintballs with paintball
                                                                                      guns.
                                                                                     Sponge grenades with hand
                                                                                      held launcher.
                                                                                     Blunt objects with
                                                                                      slingshot.
Tactile--Manual....................  Blunt objects--blunt    Blunt objects--blunt    Blunt objects--blunt tip
                                      tip poles, brooms,      tip poles, brooms,      poles, brooms, mop
                                      mop handles, etc.       mop handles, etc.       handles, etc.
Tactile--Water.....................  Water hoses,            Water hoses,            Water hoses, sprinklers,
                                      sprinklers, water       sprinklers, water       water guns.
                                      guns.                   guns.
----------------------------------------------------------------------------------------------------------------


           Table 3--List of Acoustic Deterrents for Non-ESA Marine Mammals Included in the Guidelines
----------------------------------------------------------------------------------------------------------------
                                           Mysticetes              Odontocetes                Pinnipeds
----------------------------------------------------------------------------------------------------------------
Impulsive--Explosives..............  None..................  None..................  Aerial pyrotechnics/
                                                                                      fireworks.
                                                                                     Bird bangers, bird
                                                                                      whistlers/screamers, bear
                                                                                      bangers using pencil
                                                                                      launcher, propane cannons.
                                                                                     Cracker shells, bird bombs,
                                                                                      seal bombs, underwater
                                                                                      firecrackers.
Impulsive--Non-Explosives..........  Banging objects (e.g.,  Banging objects (e.g.,  Banging objects (e.g.,
                                      Oikomi pipes)           Oikomi pipes)           Oikomi pipes)/in-air
                                      underwater.             underwater.             passive acoustic devices
                                                                                      (e.g., hanging chains,
                                                                                      cans).
                                                                                     Low frequency, broadband
                                                                                      devices.
                                                                                     Pulsed power devices.
Non-Impulsive (<170 dB RMS)........  Acoustic alarm (i.e.,   Acoustic alarms (i.e.,  Acoustic alarms (i.e.,
                                      pingers/transducers).   pingers/transducers).   pingers/transducers).
                                     Predator sounds/alarm   Predator sounds/alarm   Air horns, in-air
                                      vocalizations using     vocalizations using     noisemakers, sirens,
                                      underwater speakers.    underwater speakers.    whistles.
                                                                                     Predator sounds/alarm
                                                                                      vocalizations using
                                                                                      underwater speakers.
----------------------------------------------------------------------------------------------------------------

    Deterrents used in air (air dancers, gates, bull rails, aerial 
pyrotechnics, bird bombs, etc.) are included in the guidelines for 
pinnipeds only because seals and sea lions routinely spend time out of 
the water. With respect to cetaceans, underwater cracker shells, seal 
bombs, pulsed power devices, and low frequency, broadband deterrents 
could result in onset of PTS at distances close to 100 m, which is our 
evaluation criterion; therefore, in order to take advantage of the 
protection from liability provided in section 101(a)(4)(B), anyone 
using these devices to target pinnipeds, must first conduct a thorough 
scan for cetaceans in all directions as noted below and maintain the 
specified minimum silent interval.

Programmable Devices and the NMFS Acoustic Deterrent Web Tool

    Many devices allow the user to manipulate various settings or 
characteristics of the device. In order to take advantage of the 
protection from liability provided in section 101(a)(4)(B), any 
underwater non-impulsive devices capable of producing sound >= 170 dB 
root mean square (RMS) must be evaluated and approved via the Acoustic 
Deterrent Web Tool before attempting to use the deterrent. Users 
seeking protection from liability under section 101(a)(4)(B) must visit 
NMFS' online Acoustic Deterrent Web Tool and enter the settings they 
intend to use for a particular device. If the settings meet the 
evaluation criterion (onset of PTS >100 m, 1-h), the Web Tool will 
produce a certificate indicating that its use in the specified manner 
is consistent with these guidelines such that any resultant mortality 
or serious injury of a marine mammal is not a violation of the MMPA. If 
the specifications do not meet NMFS' criteria for approval, the user 
would not obtain a certificate and any resultant mortality or serious 
injury of a marine mammal could be a violation of the MMPA. The 
proposed Web Tool is available on the internet at https://jmlondon.shinyapps.io/NMFSAcousticDeterrentWebTool/.

Additional Specifications

    For many deterrents included in the guidelines, we include 
additional specifications to further minimize the

[[Page 53769]]

risk of injury to marine mammals as a condition of effectuating the 
protection from liability under section 101(a)(4)(B). For acoustic 
deterrents, to reduce potentially harmful impacts to the target marine 
mammals and other sensitive marine mammals in the vicinity, minimum 
deployment distances as well as silent intervals are required (Tables 
4-7). When deploying acoustic deterrents, users in close proximity to 
each other and/or on the same vessel must coordinate deploying any 
acoustic deterrents that have a minimum silent interval to ensure 
compliance with the requirements. For acoustic deterrents targeting 
pinnipeds, there are separate distances required for each group of 
pinnipeds. Phocids (earless seals) have lower PTS thresholds than 
otariids (eared seals and sea lions); thus, if both taxa are present, 
the user is required to comply with the minimum distance for phocids. 
Additionally, for several types of deterrents (e.g., explosives), there 
are additional municipal, state, and/or Federal requirements for using 
and possessing such deterrents. These guidelines and recommended 
specific measures do not exempt users from any such requirements. For 
example, in the Southeastern United States, possessing and using 
explosives for fishing in various contexts is prohibited by state 
regulations in all states from North Carolina through Texas, as well as 
by Federal regulations under the Magnuson-Stevens Fishery Conservation 
and Management Act. In other words, compliance with this regulation and 
section 101(a)(4)(A) does not obviate the user's obligation to comply 
with all other applicable local, state, and Federal requirements 
related to the use of deterrents. The additional implementation 
measures that are included in this rule in order to effectuate the 
protection from liability provided in section 101(a)(4)(B) are 
summarized below.

Visual Deterrents

    Flashing lights or strobe lights. Flashing or strobe lights used to 
deter marine mammals must conform to any standards established by 
Federal law.
    Flags, pinwheels, and streamers. Flags, pinwheels, and streamers 
used to deter pinnipeds must ensure, to the best ability of the user, 
that the materials will stay intact and securely fastened; all such 
products must be installed and maintained in such a manner as to reduce 
the risk of entanglement or ingestion.
    Vessel patrolling. When patrolling fishing gear or property with a 
vessel, the user must maintain a consistent and ``safe speed'' (as the 
term is defined in 33 CFR.83.06 and the International Regulations for 
Preventing Collisions at Sea 1972 (see 33 U.S.C. 1602)), compliance 
with any and all applicable speed limitations, and a fixed direction to 
avoid coming into contact with a marine mammal.
    UAS (Unmanned aircraft system). Only vertical takeoff and landing 
aircraft are allowed for deterring marine mammals. Devices must be in 
good working order and operated consistent with the manufacturer's 
specifications. Users shall fly UASs no closer than 5 m from an animal. 
UAS altitude adjustments shall be made away from animals or conducted 
slowly when above animals. A UAS shall hover over a target marine 
mammal only long enough to deter the animal and should not come into 
direct contact with the animal. Users shall abide by applicable 
approach regulations for threatened and endangered marine mammals in 50 
CFR 223.214 and 224.103, and any other applicable approach regulations 
for marine mammals such as those at 50 CFR 216.19 and 15 CFR 922.184.

Physical Barrier Deterrents

    Containment booms, waterway barriers, and log booms. Any 
containment booms, waterway barriers, and log booms used to deter 
marine mammals must be constructed, installed, secured and maintained 
to reduce the risk of entanglement or entrapment. In-water lines should 
be kept stiff, taut, and non-looping. Booms/barriers should not block 
major egress and ingress points for marine mammals in channels, rivers, 
passes, and bays.
    Rigid fencing in air, horizontal bars/bull rails, and gates or 
closely spaced poles. Any fencing, rails, gates, and poles used to 
deter pinnipeds must be constructed, installed, and maintained in such 
a manner as to ensure spacing, height, and/or width would not result in 
entrapment or entanglement.

Tactical--Electrical Deterrents

    Electric fencing (in air). Electric fencing used to deter pinnipeds 
on land shall be no more than 3,000 V and properly maintained to ensure 
required voltage and reduce the risk of entanglement or entrapment.
    Electric mats. Electric mats used to deter pinnipeds shall not 
exceed 24 V nominal.

Tactile--Projectile Deterrents

    Foam projectiles with toy guns. When using foam projectiles with 
toy guns to deter marine mammals, the deterrent must strike the 
posterior end of an animal's body, taking care to avoid the animal's 
head and/or blowhole.
    Paintballs with paintball guns. When using paintballs to deter 
pinnipeds, only non-toxic and water-soluble paintballs may be deployed 
using paintball guns at a minimum of 14 m from a phocid and 3 m from an 
otariid, and the paintball must strike the posterior end of an animal's 
body, taking care to avoid the animal's head.
    Sponge grenades using handheld launcher. Sponge grenades used to 
deter pinnipeds must be deployed at a minimum distance of 14 m from a 
phocid and 10 m from an otariid and the sponge grenade must strike the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    Blunt objects with slingshot. When using blunt objects with a sling 
shot to deter pinnipeds, users must strike an area near an animal first 
before striking the posterior end of an animal's body, taking care to 
avoid the animal's head. Blunt objects deployed via sling shot must not 
be sharp or metallic.

Tactile--Manual Deterrents

    Blunt objects. Blunt objects (e.g., poles, broom, and mop handles) 
used to deter marine mammals must be deployed using a prodding motion. 
Such deterrents are only appropriate in situations where an animal is 
directly pursuing a person, dock, vessel, or fishing gear, or 
attempting to haul out on a dock or vessel. Users must impact the 
posterior end of an animal's body (or the chest of a pinniped), taking 
care to avoid the animal's head and/or blowhole.

Tactile--Water Deterrents

    Water deterrents. When using water deterrents, users must first 
strike an area near the animal before striking the animal; then the 
user must strike the posterior end of an animal's body, taking care to 
avoid the animal's head and/or blowhole.

Acoustic Impulsive Explosive Deterrents

    Impulsive explosives. For the protection from liability provided in 
section 101(a)(4)(A) to apply, impulsive explosives are allowed only 
for deterring pinnipeds and only under certain conditions. When 
deploying approved impulsive explosives, users must abide by minimum 
distance and silent intervals as well as several other requirements 
included below. For all explosives, users must:
     Obtain all necessary permits or authorizations from local, 
state, and/or Federal authorities and make them available for 
inspection upon request by any authorized officer; and
     Deploy approved explosives behind a pinniped by the 
appropriate minimum

[[Page 53770]]

distance, taking care to avoid deploying an explosive in front of the 
animal, in the direction the animal is traveling, or in the middle of a 
group of animals.
    For seal bombs, users must abide by the following:
    1. Conduct a visual scan in all directions for cetaceans within 100 
m; if the user cannot see 100 m due to darkness or weather conditions, 
then seal bombs are prohibited;
    2. If cetaceans (whales, dolphins, porpoises) are sighted within 
100 m of the user, then seal bombs are prohibited;
    3. The visual scan must be repeated in all directions before each 
subsequent deployment; and
    4. If both pinniped taxa are present, the minimum distance for 
phocids shall apply.
    For cracker shells deployed underwater, the requirements are the 
same as those for deploying seal bombs, except the required visual 
scans are for determining whether HF cetacean species (i.e., Dall's 
porpoise, harbor porpoise, pygmy sperm whales, and dwarf sperm whales), 
as opposed to all cetaceans for seal bombs, are within a 100-m of the 
user.

   Table 4--Minimum Silent Intervals and Distances When Deploying Underwater Acoustic Impulsive Explosives for
                                               Deterring Pinnipeds
----------------------------------------------------------------------------------------------------------------
                                                                                    Minimum     Minimum distance
                  Deterrent                    Minimum silent interval between   distance from   * from otariids
                                                         deployments              phocids (m)          (m)
----------------------------------------------------------------------------------------------------------------
Cracker shell................................  6 minutes......................               3              ** 2
Seal bomb....................................  180 seconds....................              20                 2
Underwater firecracker.......................  1 second.......................            ** 2              ** 2
----------------------------------------------------------------------------------------------------------------
* If both phocid and otariid pinnipeds are observed in the area, then the minimum distance for phocids is
  required.
** Distance is based on physical proximity instead of acoustic effects.

    Because Steller sea lions from both the endangered western distinct 
population segment (DPS) as well as the eastern DPS, which is not ESA-
listed, occur east of 144[deg] W longitude and north of latitude 
55[deg]49'22.00'' N (the area north of the southern tip of Coronation 
Island) and cannot be visually distinguished, impulsive explosives 
deployed underwater (e.g., seal bombs, cracker shells, underwater 
firecrackers) are not included in the guidelines for deterring any 
Steller sea lions in all areas west of 144[deg] W longitude and north 
of latitude 55[deg]49'22.00'' N east of 144[deg] W longitude.
    For airborne explosives such as bird bombs and cracker shells, 
users must aim in the air above the animal and abide by the required 
minimum distances in Table 5.

  Table 5--Minimum Distances When Deploying Airborne Acoustic Impulsive
                   Explosives for Deterring Pinnipeds
------------------------------------------------------------------------
                                              Phocid          Otariid
                                             Pinniped        Pinniped
                Deterrent                     Minimum         Minimum
                                           Distance  (m)  Distance * (m)
------------------------------------------------------------------------
Aerial pyrotechnics/fireworks...........              23               2
Bear bangers using pencil launcher......               2            ** 2
Bird banger.............................              23               2
Bird bomb...............................               8            ** 2
Bird whistler/screamer..................               5            ** 2
Cracker shells..........................              24               2
Propane cannon..........................               2            ** 2
------------------------------------------------------------------------
* If both phocid and otariid pinnipeds are observed in the area, then
  the minimum distance for phocids is required.
** Distance is based on physical proximity instead of acoustic effects.

Acoustic Impulsive Non-Explosive Deterrents

    For impulsive non-explosives, NMFS is not proposing additional 
specifications for banging objects in air beyond the minimum distances 
and silent intervals described in Table 6. For banging objects 
underwater, pulsed power devices, and low frequency broadband devices, 
users are required to conduct a visual scan in all directions for 
either all cetaceans when using low frequency, broadband devices or HF 
cetaceans (i.e., Dall's porpoise, harbor porpoise, pygmy sperm whales, 
and dwarf sperm whales) for pulsed power devices or banging objects 
underwater as described above for impulsive explosives.

[[Page 53771]]



            Table 6--Minimum Distances and Silent Intervals When Deploying Acoustic Impulsive Non-Explosives for Deterring Each Hearing Group
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                              Phocid          Otariid
                                   Source level     Minimum silent        LF cetacean       MF cetacean     HF cetacean      pinniped        pinniped
            Deterrent                (RMS SPL)     interval between    minimum distance       minimum         minimum         minimum         minimum
                                                        signals               (m)          distance (m)    distance (m)    distance (m)    distance (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Pulsed Power Device.............          220 dB  1200 seconds (20    ..................  ..............  ..............               1               1
                                                   minutes).
Low frequency, broadband device.          219 dB  300 seconds.......  ..................  ..............  ..............               5               1
Low frequency, broadband device.          215 dB  120 seconds.......  ..................  ..............  ..............               5               1
Low frequency, broadband device.          208 dB  30 seconds........  ..................  ..............  ..............               4               1
Banging objects underwater......             n/a  18 seconds........  11................               3  ..............               8               2
Banging objects in air..........             n/a  n/a...............  n/a...............             n/a             n/a              24               2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: A blank cell indicates that particular deterrent is not included in the guidelines or specific measures for that taxon.

Acoustic Non-Impulsive Deterrents

    For airborne non-impulsive deterrents, Table 7 denotes minimum 
distances for phocids based on hearing sensitivity and minimum 
distances for otariids based on physical proximity to ensure people 
keep a safe distance from the animal.

    Table 7--Minimum Distances When Deploying Airborne Non-Impulsive
                    Acoustic Deterrents for Pinnipeds
------------------------------------------------------------------------
                                              Phocid          Otariid
                                             pinniped        pinniped
                Deterrent                     minimum         minimum
                                           distance (m)   distance * (m)
------------------------------------------------------------------------
Air horn................................               4            ** 2
In-air noise maker (e.g., vuvuzela).....               5            ** 2
Sirens..................................               2            ** 2
Whistles................................               3            ** 2
------------------------------------------------------------------------
* If both phocid and otariid pinnipeds are observed in the area, then
  the minimum distance for phocids is required.
** Distance is based on physical proximity instead of acoustic effects.

Proposed Recommended Specific Measures for Deterring ESA-Listed Marine 
Mammals

    A summary of the recommended specific measures proposed for ESA-
listed marine mammals is in Table 8. NMFS proposes to include all of 
the above guidelines as recommended specific measures for deterring 
ESA-listed mysticetes (baleen whales). Persons deterring marine mammals 
are still required to abide by existing approach regulations for 
humpback whales in Alaska, North Atlantic right whales, western Steller 
sea lions, and killer whales in Washington pursuant to 50 CFR 223.214 
and 224.103, and any other applicable approach regulations for marine 
mammals such as those at 50 CFR 216.19 and 15 CFR 922.184. For ESA-
listed odontocetes, NMFS proposes recommended specific measures for the 
Cook Inlet DPS of beluga whales, the Main Hawaiian Islands Insular DPS 
of false killer whales, the Southern Resident DPS of killer whales, and 
sperm whales. For ESA-listed pinnipeds, NMFS proposes recommended 
specific measures for the western DPS of Steller sea lions and the 
Hawaiian monk seal; for all other species of ESA-listed pinnipeds, NMFS 
proposes to include all of the above guidelines as recommended specific 
measures. The western DPS of Steller sea lions is defined as Steller 
sea lions born west of 144[deg] W longitude. In recent years, western 
DPS Steller sea lions have also been documented east of 144[deg] W 
longitude. Western DPS Steller sea lions east of 144[deg] W longitude 
commonly occur from Cape Suckling through Yakutat and northern 
southeast Alaska to 55[deg]49'22.00'' N latitude, but are rarely found 
south of 55[deg]49'22.00'' N latitude (north of the southern tip of 
Coronation Island) (Jemison et al. 2018, Hastings et al. 2020). 
Therefore, NMFS proposes recommended specific measures for all areas 
occupied by western DPS animals, both east and west of 144[deg] W, 
except for airborne acoustic impulsive explosives, which are proposed 
only for deterring Steller sea lions east of 144[deg] W longitude and 
north of 55[deg]49'22.00'' N latitude.

                                     Table 8--Recommended Specific Measures for Deterring ESA-Listed Marine Mammals
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                  ESA-listed odontocetes                     ESA-listed pinnipeds
                                                          ESA-listed -----------------------------------------------------------------------------------
                                                          mysticetes                Insular                  Sperm
                                                                       CI Beluga      FKW        SRKW       whales        HMS        WSSL     All others
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Non-Acoustic Deterrents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Visual:
    Air dancers, flags, pinwheels, streamers............  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Bubble curtains.....................................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]
    Flashing or strobe lights...........................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]
    Human attendants....................................  ..........  ..........  ..........  ..........  ..........  ..........  ..........  ..........
    Predator shapes.....................................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]
    Vessel patrolling...................................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]
    Unmanned aircraft systems...........................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]

[[Page 53772]]

 
Physical barriers:
    Rigid fencing in air................................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Horizontal bars/bull rails..........................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Gates/closely spaced bars...........................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Containment booms/waterway barriers.................    [check]   ..........  ..........    [check]     [check]     [check]     [check]     [check]
    Swim step protectors................................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
Tactile:
  Projectiles:
    Paintballs and sponge grenades used with air rifle    ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
     or airsoft gun.....................................
    Foam missiles/rounds with toy guns..................    [check]   ..........  ..........    [check]     [check]     [check]     [check]     [check]
    Blunt objects with slingshot........................  ..........  ..........  ..........  ..........  ..........  ..........    [check]     [check]
  Manual:
    Crowder boards, blunt-tipped poles, brooms, mop         [check]   ..........    [check]   ..........    [check]     [check]     [check]     [check]
     handles, etc.......................................
  Electrical:
    Electric fencing in air.............................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Electrical mats.....................................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
  Water:
    Hose, sprinkler, water gun..........................    [check]     [check]     [check]     [check]     [check]     [check]     [check]     [check]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Acoustic Deterrents
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impulsive:
  Explosive:
    Aerial pyrotechnics/fireworks; bird bangers; bird     ..........  ..........  ..........  ..........  ..........  ..........    [check]     [check]
     whistler/screamers; bear bangers used with pencil
     launchers..........................................
    Propane cannons.....................................  ..........  ..........  ..........  ..........  ..........  ..........    [check]     [check]
    Explosive pest control devices (i.e., seal bombs,     ..........  ..........  ..........  ..........  ..........  ..........  ..........    [check]
     cracker shells, bird bombs, underwater
     firecrackers)......................................
  Non-Explosive:
    Low-frequency, broadband devices....................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Pulsed power devices................................  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Banging objects underwater..........................    [check]   ..........  ..........    [check]     [check]     [check]     [check]     [check]
    Banging objects in-air/passive acoustic deterrents..  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
Non-impulsive:
    Underwater devices <170dB including acoustic alarms     [check]   ..........  ..........    [check]     [check]     [check]     [check]     [check]
     (i.e., pingers, transducers).......................
    Air horns, in-air noisemakers, sirens, whistles.....  ..........  ..........  ..........  ..........  ..........    [check]     [check]     [check]
    Predator sounds/alarm vocalizations using underwater    [check]   ..........  ..........    [check]     [check]     [check]     [check]    [check]
     speakers...........................................
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Cells with check marks indicate the specific measure is approved for that taxa or species; blank cells indicate those deterrents are not included
  as specific measures.
List of Abbreviations in Table 8: CI--Cook Inlet; FKW--false killer whale; HMS--Hawaiian monk seal; SRKW--Southern Resident killer whale; WSSL--western
  Steller sea lion.

Reporting Requirement

    NMFS is proposing a reporting requirement for any marine mammals 
that are observed to have been injured or killed in the course of 
deterrence under the guidelines and recommended specific measures. This 
requirement to submit a form either online or via postage-paid mailing 
is similar to the requirement for commercial fishermen to report marine 
mammals incidentally killed or injured during commercial fishing 
operations. This will provide information to evaluate whether the 
guidelines and recommended specific measures are working as intended 
for safely deterring marine mammals.
    If a marine mammal is observed injured or killed during or as a 
result of using a deterrent included in the guidelines or recommended 
specific measures, that injury or death must be reported to NMFS within 
48 hours in order for the protection from liability in section 
101(a)(4)(B) to apply. If finalized, NMFS intends that, for commercial 
fishing vessel owners and operators, reporting requirements for 
deterrent-related mortality and injury of marine mammals will be 
integrated with existing reporting requirements under MMPA section 
118(e). Specifically, NMFS would seek to revise the existing form 
(Office of Management and Budget (OMB) number 0648-0292) to request 
additional information regarding deterrent use during the next update 
per the collection of information requirements of the Paperwork 
Reduction Act (PRA). Reporting requirements are applicable to all 
vessel owners and operators regardless of commercial fishery category 
on the MMPA List of Fisheries (i.e., Category I, Category II, or 
Category III).
    For anyone other than a commercial fisherman engaging in 
deterrence, when reporting a mortality or injury under this provision 
the following information would be required:
    1. The name and address of the person deterring the marine 
mammal(s);
    2. The vessel name, and Federal, state, or tribal registration 
numbers of the registered vessel and/or the saltwater angler 
registration number if deterrence occurred during fishing;
    3. A description of the fishery, including gear type and target, or 
of the property where the deterrence occurred;
    4. A description of the deterrent including number of attempts/
deployments, specifications of devices, and any other relevant 
characteristics;
    5. The species and number of each marine mammal incidentally killed 
or injured or a description (and/or photograph or video if available) 
of the animal(s) killed or injured if the species is unknown;
    6. The disposition of the animal (e.g., injured or dead, type of 
wounds);

[[Page 53773]]

    7. The date, time, and approximate geographic location where the 
mortality or injury occurred; and
    8. Other relevant information such as the behavior of the animal in 
response to the deterrent, other protected species in the vicinity, 
etc.

Prohibitions

    NMFS has determined that a number of deterrents and associated 
deterrence activities would result in significant adverse effects to 
marine mammals (Table 9). Specifically, NMFS finds that the deterrents 
listed in Table 9 are likely to result in mortality, serious injury, 
and/or permanent hearing loss. Additionally, several prohibitions are 
included to cross-reference with other pre-existing prohibitions 
concerning the particular species or other parts of the regulations 
relevant to marine mammals. Information on these prohibitions are 
detailed in Chapter 4 of the draft EA.

            Table 9--Prohibitions on Deterring Marine Mammals
------------------------------------------------------------------------
                          General Prohibitions
-------------------------------------------------------------------------
Target a deterrent action at a marine mammal calf or pup.
Striking a marine mammal's head or blowhole when attempting to deter a
 marine mammal.
Deploying or attempting to deploy a deterrent into the middle of a group
 of marine mammals.
Feeding or attempting to feed a marine mammal in a manner prohibited by
 50 CFR 226.3 even for the purposes of deterrence.
Deterring or attempting to deter any marine mammal demonstrating signs
 of aggression, including charging or lunging, except when necessary to
 deter a marine mammal from endangering personal safety.
Approaching certain ESA-listed marine mammals, including humpback whales
 in Alaska, North Atlantic right whales, western Steller sea lions, and
 killer whales in Washington, pursuant to 50 CFR 223.214 and 224.103.


------------------------------------------------------------------------
        Mysticetes                  Odontocetes             Pinnipeds
------------------------------------------------------------------------
                         Non-Acoustic Deterrents
------------------------------------------------------------------------
                                                        Patrol animals.
Vessel chasing.             Vessel chasing.             Vessel chasing.
Using any chemical          Using any chemical          Using any
 irritants, corrosive        irritants, corrosive        chemical
 chemicals, and other        chemicals, and other        irritants,
 taste deterrents to deter   taste deterrents to deter   corrosive
 marine mammals.             marine mammals.             chemicals, and
                                                         other taste
                                                         deterrents to
                                                         deter marine
                                                         mammals.
Sharp objects.              Sharp objects.              Sharp objects.
Using a firearm, bow, or    Using a firearm, bow, or    Using a firearm,
 spear gun for deterring     spear gun for deterring     except for bird
 mysticetes.                 odontocetes.                bombs and
                                                         cracker shells.
                                                        Discharging a
                                                         firearm at or
                                                         within 100
                                                         yards (91.4 m)
                                                         of a Steller
                                                         sea lion west
                                                         of 144[deg] W
                                                         longitude.
------------------------------------------------------------------------
                           Acoustic Deterrents
------------------------------------------------------------------------
Any impulsive explosives.   Any impulsive explosives.   Any impulsive
                                                         explosives not
                                                         included in the
                                                         guidelines or
                                                         specific
                                                         measures.
                                                        Seal bombs,
                                                         underwater
                                                         cracker shells,
                                                         banging objects
                                                         underwater,
                                                         pulsed power
                                                         devices, or low
                                                         frequency
                                                         broadband
                                                         devices when
                                                         visibility is
                                                         <100m (e.g., at
                                                         night, fog).
Any non-impulsive device    Any non-impulsive device    Any non-
 with an underwater source   with an underwater source   impulsive
 level >=170 dB RMS,         level. >=170 dB RMS,        device with an
 unless that device has      unless that device has      underwater
 been evaluated and          been evaluated and          source level
 approved by NMFS or via     approved by NMFS or via     >=170 dB RMS,
 the NMFS Acoustic           the NMFS Acoustic           unless that
 Deterrent Web Tool          Deterrent Web Tool.         device has been
                                                         evaluated and
                                                         approved by
                                                         NMFS or via the
                                                         NMFS Acoustic
                                                         Deterrent Web
                                                         Tool.
------------------------------------------------------------------------

Revising MMPA Provisions at Sec. Sec.  229.4 and 229.5

    NMFS proposes to revise 50 CFR 229.4 and 229.5 to ensure 
consistency between these guidelines and recommended specific measures 
and the existing regulations for commercial fisheries under the MMPA. 
NMFS proposes to clarify that persons engaged in Category I, II, and 
III fisheries must comply with all deterrence prohibitions and are 
encouraged to follow the guidelines and recommended specific measures 
in 50 CFR part 216 to safely deter marine mammals from damaging fishing 
gear, catch, or other private property or from endangering personal 
safety.

Request for Public Comment

    NMFS requests public comment on these proposed guidelines, 
recommended specific measures, and prohibitions and the topics noted 
below.
     Any deterrents not included in the proposed guidelines, 
recommended specific measures, or prohibitions that should be 
considered.
     Specifications and typical deployment practices for all 
acoustic devices, but particularly the acoustic specifications for 
paintball guns and airsoft guns.
     The design and usability of the NMFS Acoustic Deterrents 
Web Tool.
     Underwater source level associated with cracker shells.
     Signal duration associated with propane cannons, air 
rifles, low frequency broadband devices, and cowbells or other passive 
acoustic deterrents.
     Silent intervals and/or signal durations associated with 
numerous underwater acoustic alarms (see Appendix B in EA for more 
detail).
     Whether NMFS should consider only allowing ``low impact'' 
(i.e., 0.50 caliber) paintballs or allow both low and higher impact 
(i.e., 0.68 caliber) paintballs for pinnipeds.
     Whether paint balls and sponge grenades should be allowed 
for endangered Hawaiian monk seals.

[[Page 53774]]

     Whether the proposed specific measures for endangered 
Hawaiian monk seals are appropriate in the Hawaiian cultural context.
     The impacts this rulemaking may have on tribal and Alaska 
Native communities.

References Cited

    A complete list of all references cited in this proposed rule can 
be found on the Federal e-Rulemaking Portal at www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2020-0109, and is available upon request 
from the NMFS Office of Protected Resources (see ADDRESSES).

Classification

    The Chief Counsel for Regulation of the Department of Commerce has 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration (SBA) that this proposed rule would not have a 
significant economic impact on a substantial number of small entities. 
Any entity with combined annual fishery landing receipts less than $11 
million is considered a small entity for purposes of the Regulatory 
Flexibility Act (50 CFR 200.2). Under this $11 million standard, all 
entities subject to this action are considered small entities.
    This action proposes guidelines for safely deterring marine mammals 
under NOAA's jurisdiction (e.g., whales, dolphins, seals, and sea 
lions) and recommends specific measures for safely deterring marine 
mammals listed under the ESA. It also proposes prohibitions on 
deterrent methods that would have a significant adverse effect on 
marine mammals. The proposed rule does not require that property 
owners, commercial fishermen, or recreational fishermen deter marine 
mammals; if members of the public choose to deter marine mammals from 
endangering personal safety, damaging private or public property, or 
damaging fishing gear or catch consistent with the guidelines and 
recommended specific measures, those persons would be protected from 
liability under section 101(a)(4)(B) if a marine mammal is killed or 
seriously injured as a result of such deterrence. Therefore, the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. Because this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities, an initial regulatory flexibility analysis is not required 
and was not prepared.

Paperwork Reduction Act

    This proposed rule contains a collection-of-information requirement 
subject to review and approval by OMB under the PRA. This requirement 
has been submitted to OMB for approval. Public reporting burden for 
(marine mammal mortality and injury report) is estimated to average 15 
minutes per individual response, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection information.
    Public comment is sought regarding: Whether this proposed 
collection of information is necessary for the proper performance of 
the functions of the agency, including whether the information shall 
have practical utility; the accuracy of the burden estimate; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways to minimize the burden of the collection of 
information, including through the use of automated collection 
techniques or other forms of information technology. Send comments on 
these or any other aspects of the collection of information to NMFS 
Office of Protected Resources at the ADDRESSES above, by email to 
[email protected], or fax to (202) 395-7285.
    Notwithstanding any other provision of the law, no person is 
required to respond to, and no person shall be subject to penalty for 
failure to comply with, a collection of information subject to the 
requirements of the PRA, unless that collection of information displays 
a currently valid OMB control number.

Executive Order 12866, Regulatory Planning and Review, and Executive 
Order 13771, Reducing Regulation and Controlling Regulatory Costs

    This proposed rule has been determined to be not significant for 
the purposes of Executive Orders 12866 and 13563. This rule is not 
expected to be an Executive Order 13771 regulatory action because this 
rule is not significant under Executive Order 12866.

National Environmental Policy Act

    NMFS prepared a draft EA for this proposed rule that discussed the 
potential impacts of this action on the environment. In addition to the 
no action alternative (status quo), one alternative (preferred and the 
basis of this proposed rule) is analyzed.
    NMFS identified Alternative 2, issuing national guidelines and 
specific measures for safely deterring marine mammals as well as 
prohibitions, as the preferred alternative for the proposed action. 
Under Alternative 2, NMFS would issue national guidelines prescribing 
methods and technologies to safely deter marine mammals, as well as 
specific measures for safely deterring endangered or threatened marine 
mammals, in a manner that would allow fishermen and property owners to 
protect their catch, fishing gear, and property without killing or 
seriously injuring marine mammals. Alternative 2 also includes 
prohibitions of certain deterrents that NMFS has determined would have 
a high adverse effect on marine mammals.
    Under the No Action alternative, Alternative 1, NMFS does not issue 
guidelines or specific measures for safely deterring marine mammals or 
promulgate prohibitions on deterrents that we have determined would 
have a high adverse effect on marine mammals, thereby maintaining the 
status quo. The MMPA requires NMFS to establish guidelines for safely 
deterring marine mammals and specific measures for ESA-listed marine 
mammals. Therefore, Alternative 1 is inconsistent with the statutory 
obligation under the MMPA to prescribe guidelines and specific measures 
for safely deterring marine mammals from endangering personal safety, 
and damaging property, fishing gear, or catch.
    The preferred alternative, Alternative 2, would not result in any 
high adverse impacts on the human environment, including protected 
marine populations, commercial fisheries, fishermen, or other 
regulatory programs. Additionally, certain deterrents that have a 
significant adverse effect on marine mammals would be prohibited.
    A copy of the draft EA is available from NMFS (see ADDRESSES).

Endangered Species Act

    There are 22 marine mammal species under NMFS jurisdiction that are 
listed as endangered or threatened under the ESA that may be affected 
by this rulemaking. There is also critical habitat designated for seven 
of those species where deterrents may be used. NMFS will consult 
internally pursuant to section 7 of the ESA on issuing these guidelines 
and recommended specific measures. NMFS will conclude the consultation 
prior to a determination on the issuance of the final rulemaking.

Coastal Zone Management

    This proposed rule would not affect the land or water uses or 
natural resources of the coastal zone, as specified under section 307 
of the Coastal Zone Management Act.

[[Page 53775]]

List of Subjects

50 CFR Part 216

    Administrative practice and procedure, Alaska, Exports, Fish, 
Fisheries, Fishing, Fishing vessels, Imports, Indians, Labeling, Marine 
mammals, Reporting and recordkeeping requirements.

50 CFR Part 229

    Administrative practice and procedure, Confidential business 
information, Fisheries, Marine mammals, Reporting and recordkeeping 
requirements.

Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, 50 CFR parts 216 and 229 
are proposed to be amended as follows:

PART 216--REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE 
MAMMALS

0
1. The authority citation for part 216 continues to read as follows:

    Authority: 16 U.S.C. 1371 et seq., unless otherwise noted.

0
2. Add subpart J to part 216 to read as follows:
Subpart J--Authorization for Deterring Marine Mammals Under the Marine 
Mammal Protection Act of 1972
Sec.
216.110 Basis and purpose.
216.111 Scope.
216.112 Definitions.
216.113 Guidelines for safely deterring marine mammals.
216.114 Specific measures for deterring threatened and endangered 
marine mammals.
216.115 Prohibitions.
216.116 Reporting requirements.

Subpart J--Authorization for Deterring Marine Mammals Under the 
Marine Mammal Protection Act of 1972


Sec.  216.110  Basis and purpose.

    (a) The regulations in this subpart implement section 101(a)(4) of 
the Marine Mammal Protection Act (MMPA) of 1972, as amended, 16 U.S.C. 
1371(a)(4). Provided deterrence actions do not result in death or 
serious injury, section 101(a)(4) provides exceptions to the 
prohibition against take of marine mammals for:
    (1) The owner of fishing gear or catch, or an employee or agent of 
such owner, to deter a marine mammal from damaging the gear or catch;
    (2) The owner of other private property, or an agent, bailee, or 
employee of such owner, to deter a marine mammal from damaging private 
property;
    (3) Any person, to deter a marine mammal from endangering personal 
safety; or
    (4) A government employee, to deter a marine mammal from damaging 
public property.
    (b) This subpart provide guidelines and recommended specific 
measures designed to safely deter marine mammals without causing death 
or serious injury. While this subpart and recommended specific 
guidelines in this subpart are not required, individuals are protected 
from liability under section 101(a)(4)(B) for actions to deter marine 
mammals that are consistent with the guidelines or specific measures in 
this subpart even if a marine mammal is killed or seriously injured as 
a result of the action.
    (c) This subpart also prohibit the use of certain deterrent methods 
that the Agency has determined have a significant adverse effect on 
marine mammals.


Sec.  216.111  Scope.

    (a) The regulations in this subpart apply only to those marine 
mammals under the jurisdiction of the National Marine Fisheries Service 
(NMFS).
    (b) The regulations in this subpart do not apply to section 109(h) 
of the Marine Mammal Protection Act or the regulations promulgated in 
Sec.  216.22.
    (c) The regulations in this subpart do not apply to take of a 
marine mammal if such taking is imminently necessary in self-defense or 
to save the life a person in immediate danger pursuant to section 
101(c) of the Marine Mammal Protection Act.
    (d) The regulations in this subpart do not apply to tribal 
fishermen participating in a fishery pursuant to a treaty between the 
Indian tribe and the United States.
    (e) Lasers; underwater electrical fencing, nets, and barriers; 
electric prods; electroshock weapon technology, and any other deterrent 
not specifically identified for a given taxa are not included in the 
guidelines or recommended specific measures in this subpart for 
deterring marine mammals. Any person using such deterrents does so at 
their own risk and is liable for any resulting mortality or serious 
injury of a marine mammal.


Sec.  216.112  Definitions.

    In addition to the definitions in the Marine Mammal Protection Act 
and in Sec.  216.3, and unless otherwise defined in this chapter, the 
terms in this chapter have the following meaning:
    Acoustic alarm means any acoustic non-impulsive deterrent, 
including but not limited to pingers and transducers.
    Acoustic deterrent means any deterrent that produces sound either 
in air or underwater.
    Acoustic deterrent web tool means a web-based tool for a deterrent 
user to calculate the potential for a programmable non-impulsive device 
to induce onset of permanent threshold shift for marine mammals. If the 
device meets the evaluation criteria, a certificate documenting the 
device as specified would be issued. The evaluation criterion considers 
whether a deterrent has the potential to result in a permanent 
threshold shift (based on each marine mammal hearing group) at 
distances > 100 meters from the source after an hour of exposure.
    Aerial pyrotechnic means a device that creates an exothermic 
chemical reaction to make heat, light, gas, smoke, and/or sound in air, 
commonly referred to as fireworks in air.
    Approved means that the use of the deterrent method has been 
evaluated by NMFS and that any mortality or serious injury of a marine 
mammal resulting from the use of that method will not be a violation of 
the MMPA if the user has followed NMFS's guidelines or recommendations 
for the use of that method in this subpart.
    Bird bomb means a pyrotechnic device, an impulsive explosive 
acoustic deterrent, which is designed to detonate in air and is 
discharged from a handheld launcher, similar to a starter pistol, using 
6 mm 0.22 caliber firing caps to propel cartridges from a single-shot 
launcher.
    Chemo-sensory deterrent means any deterrent that pertains to the 
sensing of chemicals by taste, including non-regulated substances 
(e.g., hot sauce, vinegar) and chemical irritants and corrosive 
chemicals as defined by the Occupational Safety and Health 
Administration.
    Cracker shell means a pyrotechnic device, an impulsive explosive 
acoustic deterrent, which is discharged from a 12-gauge shotgun and 
detonates in air or just below the surface in water.
    Electrical deterrent means any deterrent that produces electricity 
as a means to deter a marine mammal upon contact.
    Explosive means the same as defined in 27 CFR 555.11, any chemical 
compound, mixture, or device, the primary or common purpose of which is 
to function by explosion. The term includes, but is not limited to, 
dynamite and other high explosives, black powder, pellet powder, 
initiating explosives, detonators, safety fuses,

[[Page 53776]]

squibs, detonating cord, igniter cord, and igniters.
    Firearm means any weapon, such as a pistol or rifle, capable of 
firing a missile or projectile using an explosive as a propellant.
    Impulsive acoustic deterrent means any acoustic deterrent that 
produces sounds that are typically transient, brief, broadband, and 
consist of high peak sound pressure with rapid rise time and decay.
    Impulsive explosive acoustic deterrent means any acoustic impulsive 
deterrent that contains an explosive as defined in this section. This 
term includes explosive pest control devices, as that term is defined 
by the U.S. Department of Alcohol, Tobacco, and Firearms, such as bird 
bombs, cracker shells, seal bombs, and underwater firecrackers.
    Impulsive non-explosive acoustic deterrent means any acoustic 
impulsive deterrent that does not contain an explosive, including the 
following:
    (1) Banging pipes or other objects;
    (2) Low frequency, broadband deterrents; and
    (3) Pulsed power devices.
    Manually-deployed means any deterrent used by hand.
    Non-impulsive acoustic deterrent means any acoustic deterrent that 
produces sounds that can be broadband, narrowband, or tonal, brief or 
prolonged, continuous or intermittent, and typically do not have high 
peak sound pressure, including the following:
    (1) Acoustic alarms;
    (2) In-air noisemakers;
    (3) Predator sounds or marine mammal alarm vocalizations emitted by 
underwater speakers; and
    (4) Passive acoustic in-air deterrents.
    Physical barrier means any object that blocks passage by a marine 
mammal, including the following:
    (1) Containment booms, waterway barriers, and log booms;
    (2) Gates or closely spaced poles;
    (3) Horizontal bars such as bull rails;
    (4) Rigid fencing; and
    (5) Swim-step protectors.
    Safe speed means the same as defined under 33 CFR 83.06 and the 
International Regulations for Preventing Collisions at Sea 1972 (see 33 
U.S.C. 1602).
    Seal bomb means an impulsive explosive acoustic deterrent that is 
thrown by hand, contains no more than 40 grains of explosive material 
housed in a sealed cardboard tube, fitted with a waterproof fuse, and 
weighted to sink below the surface of the water before detonating 
underwater.
    Sling shot means a Y-shaped stick or frame with an elastic strap 
attached to the prongs, used for manually flinging small projectiles 
such as rocks.
    Tactile deterrent means any deterrent that physically comes in 
contact with a marine mammal, whether deployed manually or projected by 
an accompanying device, including the following:
    (1) Electrical deterrents;
    (2) Projectiles used with firearms;
    (3) Projectiles used with compressed air or gas;
    (4) Projectiles deployed with any other device;
    (5) Sharp or blunt objects, fixed in place or manually deployed; 
and
    (6) Water deterrents.
    Underwater firecracker means a pyrotechnic device that is an 
impulsive explosive acoustic deterrent, designed with a fuse and water-
resistant casing that allows the device to detonate at the surface of 
the water or underwater. Underwater firecrackers are similar to seal 
bombs, but have a much shorter fuse.
    Visual deterrent means any deterrent that relies on a marine 
mammal's visual acuity and perception, including the following:
    (1) Air dancers, flags, pinwheels, and streamers;
    (2) Bubble curtains;
    (3) Flashing lights or strobe lights;
    (4) Human attendants;
    (5) Patrol animals;
    (6) Predator shapes;
    (7) Vessel chasing;
    (8) Vessel patrolling; and
    (9) Unmanned aircraft systems.


Sec.  216.113   Guidelines for safely deterring marine mammals.

    (a) General. (1) The guidelines in this section for safely 
deterring marine mammals must be followed in order for the protection 
for liability, provided under section 101(a)(4)(B) of the MMPA to apply 
even if death or serious injury of a marine mammal results from such 
deterrence. The guidelines in this section apply to all marine mammals 
under NMFS' jurisdiction that are not listed as threatened or 
endangered under the Endangered Species Act of 1973.
    (2) [Reserved]
    (b) Mysticetes. (1) Visual deterrents, including bubble curtains; 
flashing or strobe lights; predator shapes; vessel patrolling; and 
unmanned aircraft systems (UASs), are approved to deter mysticetes 
provided the user abides by the following:
    (i) Flashing or strobe lights must conform to any standards 
established by Federal law.
    (ii) Vessel patrolling of fishing gear is approved provided the 
user maintains a consistent and safe speed, in compliance with any and 
all applicable speed limitations, and fixed direction to avoid coming 
into contact with the whale.
    (iii) UAS are approved provided the user abides by the following:
    (A) Only vertical takeoff and landing aircraft are allowed;
    (B) Users shall fly UASs no closer than 5 m from an animal;
    (C) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals;
    (D) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal; 
and
    (E) When deploying a UAS, users shall follow approach regulations 
for threatened and endangered marine mammals, including humpback whales 
in Alaska and North Atlantic right whales, pursuant to 50 CFR 223.214 
and 224.103 and any other applicable approach regulations for marine 
mammals, and shall adhere to those approach requirements in the event 
any such requirement conflicts with the provisions of this subpart.
    (2) Physical barriers, including containment booms, waterway 
barriers, and log booms, are approved to deter mysticetes provided the 
user abides by the following:
    (i) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals.
    (ii) Lines in the water shall be kept stiff, taut, and non-looping.
    (iii) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (3) Tactile deterrents, including foam projectiles propelled by a 
toy gun; blunt objects, such as blunt tip poles and brooms, deployed 
manually; and water hoses, sprinklers, and water guns, are approved to 
deter mysticetes provided the user abides by the following:
    (i) Blunt objects must be deployed using a prodding motion.
    (ii) Tactile deterrents must only strike the posterior end of an 
animal's body, taking care to avoid the animal's head and blowhole.
    (iii) Water deterrents must impact near an animal before striking 
the animal.
    (4) Impulsive non-explosive acoustic deterrents, including banging 
objects underwater, are approved for deterring mysticetes provided the 
user abides by the following:
    (i) The user must first conduct a visual scan in all directions for 
other marine mammals within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed.

[[Page 53777]]

    (ii) If Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed.
    (iii) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, 
or dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 11 m from a mysticete with a 
minimum of 18 seconds between strikes.
    (5) Non-impulsive acoustic deterrents pursuant to paragraphs 
(b)(5)(i) and (ii) of this section are approved.
    (i) Acoustic alarms, predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170 
dB root mean square sound pressure level (RMS) are approved for 
mysticetes; any such emission by underwater speakers capable of 
producing sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use such 
underwater speakers.
    (ii) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (c) Odontocetes. (1) Visual deterrents, including bubble curtains, 
flashing or strobe lights, predator shapes, vessel patrolling, and 
UASs, are approved to deter odontocetes provided the user abides by the 
following:
    (i) Flashing or strobe lights must conform to any standards 
established by Federal law.
    (ii) Vessel patrolling of fishing gear is approved provided the 
user maintains a consistent and safe speed, in compliance with any and 
all applicable speed limitations, and fixed direction to avoid coming 
into contact with the odontocete.
    (iii) UAS are approved provided the user abides by the following:
    (A) Only vertical takeoff and landing aircraft are allowed;
    (B) Users shall fly UASs no closer than 5 m from an animal;
    (C) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals;
    (D) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal; 
and
    (E) When deploying a UAS from a motorized or non-motorized vessel, 
users shall follow approach regulations for killer whales in Washington 
at 50 CFR 224.103(e) and any other applicable approach regulations for 
marine mammals, and shall adhere to those approach requirements in the 
event any such requirement conflicts with the provisions of this 
subpart.
    (2) Physical barriers, including containment booms, waterway 
barriers, and log booms, are approved to deter odontocetes provided the 
user abides by the following:
    (i) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals.
    (ii) Lines in the water shall be kept stiff, taut, and non-looping.
    (iii) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (3) Tactile deterrents, including foam projectiles propelled by a 
toy gun; blunt objects, such as blunt tip poles and brooms, deployed 
manually; and water hoses, sprinklers, and water guns, are approved to 
deter odontocetes provided the user abides by the following:
    (i) Blunt objects must be deployed using a prodding motion.
    (ii) Tactile deterrents must only strike the posterior end of an 
animal's body, taking care to avoid the animal's head and blowhole.
    (iii) Water deterrents must impact near an animal before striking 
the animal.
    (4) Impulsive non-explosive acoustic deterrents, including banging 
objects underwater are approved for deterring odontocetes, except for 
Dall's porpoise, harbor porpoise, pygmy sperm whales, and dwarf sperm 
whales, provided the user abides by the following:
    (i) The user must first conduct a visual scan in all directions for 
other marine mammals within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed.
    (ii) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed.
    (iii) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, 
or dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 3 m from any other species of 
odontocete with a minimum of 18 seconds between strikes.
    (5) Non-impulsive acoustic deterrents pursuant to paragraphs 
(c)(5)(i) and (ii) of this section are approved.
    (i) Acoustic alarms and predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170dB 
RMS are approved for odontocetes; any such emissions by underwater 
speakers capable of producing sounds >=170 dB RMS must be evaluated and 
approved via the NMFS Acoustic Deterrent Web Tool before any attempt is 
made to use such underwater speakers.
    (ii) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (d) Pinnipeds. (1) Visual deterrents, including air dancers, flags, 
pinwheels, and streamers; bubble curtains; flashing or strobe lights; 
human attendants; predator shapes; vessel patrolling; and UASs, are 
approved to deter pinnipeds provided the user abides by the following:
    (i) Flags, pinwheels, and streamers must be installed and 
maintained to reduce the risk of entanglement or entrapment of marine 
mammals.
    (ii) Flashing or strobe lights must conform to any standards 
established by Federal law.
    (iii) Vessel patrolling of fishing gear or property is approved 
provided the user maintains a consistent and safe speed, in compliance 
with any and all applicable speed limitations, and fixed direction to 
avoid coming into contact with the pinniped.
    (iv) UAS are approved provided the user abides by the following:
    (A) Only vertical takeoff and landing aircraft are allowed;
    (B) Users shall fly UASs no closer than 5 m from an animal;
    (C) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals;
    (D) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal; 
and
    (E) When deploying a UAS, users shall follow approach regulations 
for endangered Steller sea lions in 50 CFR 224.103(d) and any other 
applicable approach regulations for marine mammals, and shall adhere to 
those approach requirements in the event any

[[Page 53778]]

such requirement conflicts with the provisions of this subpart.
    (2) Physical barriers, including containment booms, waterway 
barriers, and log booms, are approved to deter pinnipeds provided the 
user abides by the following:
    (i) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals.
    (ii) Lines in the water shall be kept stiff, taut, and non-looping.
    (iii) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (3) Tactile deterrents pursuant to paragraphs (d)(3)(i) through 
(vi) of this section are approved.
    (i) Electric deterrents, including electric mats and electric 
fences are approved for pinnipeds provided the user abides by the 
following:
    (A) Electric mats shall not exceed 24V nominal; and
    (B) Electric fences shall be no more than 3000V and properly 
maintained to ensure required voltage and reduce the risk of 
entanglement or entrapment.
    (ii) Foam projectiles propelled by a toy gun are approved for 
deterring pinnipeds provided the foam projectile only strikes the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    (iii) Non-toxic and water-soluble paintballs deployed using 
paintball guns and low velocity sponge grenades deployed using hand-
held launchers are approved for deterring pinnipeds provided the user 
abides by the following:
    (A) Paintballs must be deployed at a minimum distance of 14 m from 
a phocid and 3 m from an otariid;
    (B) Sponge grenades must be deployed at a minimum distance of 14 m 
from a phocid and 10 m from an otariid; and
    (C) The paintball or sponge grenade must only strike the posterior 
end of an animal's body, taking care to avoid the animal's head.
    (iv) Blunt objects such as rocks deployed via sling shot are 
approved for deterring pinnipeds provided the user abides by the 
following:
    (A) Blunt objects must first impact near an animal before striking 
the animal;
    (B) Blunt objects must only strike the posterior end of an animal's 
body taking care to avoid the animal's head; and
    (C) Blunt objects deployed via sling shot must not be sharp or 
metallic.
    (v) Blunt objects, such as blunt tip poles and brooms, deployed 
manually, are approved for deterring pinnipeds provided the user abides 
by the following:
    (A) Blunt objects must be deployed using a prodding motion; and
    (B) Blunt objects must only impact the chest or strike the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    (vi) Water deterrents, including hoses, sprinklers, and water guns, 
are approved to deter pinnipeds provided they impact near an animal 
before striking the posterior end of the animal's body, taking care to 
avoid the animal's head.
    (4) Impulsive explosive acoustic deterrents pursuant to paragraphs 
(d)(4)(i) through (vi) of this section are approved.
    (i) Aerial pyrotechnics, bird bangers, bird whistlers and 
screamers, and bear bangers used with pencil launchers, are approved 
for deterring pinnipeds provided they have a source level below 142 dB 
RMS and the user abides by the following:
    (A) Aerial pyrotechnics and bird bangers must detonate in air a 
minimum of 23 m from a phocid and a minimum of 2 m from an otariid; if 
both taxa are present, the minimum distance for phocids shall apply;
    (B) Bird whistlers and screamers must detonate in air a minimum of 
5 m from a phocid and a minimum of 2 m from an otariid; if both taxa 
are present, the minimum distance for phocids shall apply;
    (C) Bear bangers deployed by pencil launchers must detonate in air 
a minimum of 2 m from a pinniped; users shall aim in the air above and 
between themselves and the pinniped; and
    (D) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained, must be maintained onsite, 
and be available for inspection upon request by any authorized officer.
    (ii) Propane cannons are approved for deterring pinnipeds provided 
the propane cannon is deployed at least 2 m from a pinniped.
    (iii) Cracker shells discharged from a 12-gauge shotgun are 
approved for deterring pinnipeds, except for Steller sea lions in all 
areas west of 144[deg] W longitude and east of 144[deg] W longitude 
north of 55[deg]49'22.00'' N latitude, provided the user abides by the 
following:
    (A) For airborne cracker shells, cracker shells must detonate in 
air at least 24 m away from a phocid and at least 2 m away from an 
otariid; if both taxa are present, the minimum distance for phocids 
shall apply.
    (B) For deploying cracker shells underwater:
    (1) The user must first conduct a visual scan in all directions for 
Dall's porpoise, harbor porpoise, pygmy sperm whales and dwarf sperm 
whales within 100 m; if the user cannot see 100 m due to darkness or 
weather conditions, cracker shells shall not be deployed underwater;
    (2) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, cracker shells 
shall not be deployed underwater;
    (3) If no Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, underwater 
cracker shells must detonate at least 3 m away from a phocid and at 
least 2 m away from an otariid; if both taxa are present, the minimum 
distance for phocids shall apply;
    (4) Cracker shells must detonate behind the target animal to deter 
from the rear and must not strike the animal or detonate in the path of 
or toward the head of the animal; and
    (5) Users are permitted to deploy cracker shells only once every 6 
minutes and must repeat the visual scan in all direction as required in 
this subsection prior to each deployment of cracker shells.
    (C) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained, must be maintained onsite, 
and be available for inspection upon request by any authorized officer.
    (iv) Bird bombs discharged from a shot launcher pistol are approved 
provided the user abides by the following:
    (A) The bird bombs must detonate in air at least 8 m away from a 
phocid and at least 2 m away from an otariid; if both taxa are present, 
the minimum distance for phocids shall apply; and
    (B) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained, must be maintained onsite, 
and be available for inspection upon request by any authorized officer.
    (v) Underwater firecrackers are approved for deterring pinnipeds, 
except for Steller sea lions in all areas west of 144[deg] W longitude 
and east of 144[deg] W longitude north of 55[deg]49'22.00'' N latitude, 
provided the user abides by the following:
    (A) The underwater firecracker must detonate a minimum of 2 m 
behind a pinniped, meaning the firecracker must not strike the animal 
or detonate in front of the animal; and
    (B) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained,

[[Page 53779]]

must be maintained onsite, and be available for inspection upon request 
by any authorized officer.
    (vi) Seal bombs are approved for deterring pinnipeds, except for 
Steller sea lions in all areas west of 144[deg] W longitude and east of 
144[deg] W longitude north of 55[deg]49'22.00'' N latitude, provided 
the user abides by the following:
    (A) The user must first conduct a visual scan in all directions for 
cetaceans within 100 m before deploying a seal bomb; if the user cannot 
see 100 m due to darkness or weather conditions, a seal bomb shall not 
be deployed;
    (B) If cetaceans are sighted within 100 m of the user, a seal bomb 
shall not be deployed;
    (C) If no cetaceans are sighted within 100 m of the user, a seal 
bomb must detonate at least 20 m away from a phocid and at least 2 m 
away from an otariid; if both taxa are present, the minimum distance 
for phocids shall apply;
    (D) Users are permitted to deploy only one seal bomb per 3-minute 
interval and must repeat the visual scan in all directions as required 
in this subsection prior to each deployment;
    (E) Users must manually deploy seal bombs behind an animal by the 
appropriate minimum distance described in paragraph (d)(4)(vi)(C) of 
this section, meaning the seal bomb must detonate behind an animal and 
not strike an animal or detonate in front of the animal, in the 
direction the animal is traveling, or in the middle of a group of 
animals; and
    (F) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained, must be maintained onsite, 
and be available for inspection upon request by any authorized officer.
    (5) Impulsive non-explosive acoustic deterrents pursuant to 
paragraphs (d)(5)(i) thorough (iii) of this section are approved.
    (i) Banging objects underwater is approved for deterring pinnipeds 
provided the user abides by the following:
    (A) The user must first conduct a visual scan in all directions for 
other marine mammals within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed;
    (B) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed; and
    (C) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 8 m away from a phocid and at 
least 2 m away from an otariid with a minimum of 18 seconds between 
strikes; if both taxa are present, the minimum distance for phocids 
shall apply.
    (ii) Banging objects in air, such as bells and in-air passive 
acoustic deterrents, are approved for deterring pinnipeds provided the 
user maintains a minimum distance of at least 24 m from a phocid and at 
least 2 m from otariid; if both taxa are present, the minimum distance 
for phocids shall apply.
    (iii) Low frequency, broadband devices and pulsed power devices 
with the following specifications are approved for deterring pinnipeds 
provided the user abides by the following:
    (A) The user must first conduct a visual scan in all directions for 
cetaceans within 100 m before deploying low frequency, broadband 
devices and pulsed power devices; if the user cannot see 100 m due to 
darkness or weather conditions, low frequency, broadband devices and 
pulsed power devices shall not be deployed;
    (B) If cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices shall not be 
deployed; and
    (C) If no cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices must maintain the 
appropriate silent interval and engage the devices according to the 
minimum distances specified in Table 1 to this paragraph 
(d)(5)(iii)(C); if both phocids and otariids are present, the minimum 
distance for phocids shall apply.

  Table 1 to Paragraph (d)(5)(iii)(C)--Minimum Silent Intervals and Distances for Low Frequency, Broadband and
                                              Pulsed Power Devices
----------------------------------------------------------------------------------------------------------------
                                                        Minimum silent
            Deterrent              Source level (RMS   interval between     Phocid pinniped    Otariid pinniped
                                         SPL)               signals        minimum  distance   minimum  distance
----------------------------------------------------------------------------------------------------------------
Pulsed Power Device.............  220 dB............  1200 seconds (20    1 meter...........  1 meter.
                                                       minutes).
Low frequency, broadband device.  219 dB............  300 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  215 dB............  120 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  208 dB............  30 seconds........  4 meters..........  1 meter.
----------------------------------------------------------------------------------------------------------------

    (6) Non-impulsive acoustic deterrents pursuant to paragraphs 
(d)(6)(i) through (iii) of this section are approved.
    (i) Acoustic alarms, predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170 
dB RMS are approved for pinnipeds; any such emission by underwater 
speakers capable of producing sounds >=170 dB RMS must be evaluated and 
approved via the NMFS Acoustic Deterrent Web Tool before any attempt is 
made to use such underwater speakers.
    (ii) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (iii) Air horns, in-air noisemakers, sirens, and whistles with 
source levels <158 dB RMS are approved for deterring pinnipeds provided 
the user abides by the following:
    (A) Air horns must be deployed at least 4 m away from a phocid and 
at least 2 m from an otariid; if both taxa are present, the minimum 
distance for phocids shall apply;
    (B) In-air noisemakers must be deployed at least 5 m away from a 
phocid and at least 2 m from an otariid; if both taxa are present, the 
minimum distance for phocids shall apply;
    (C) Sirens must be deployed at least 2 m away from a phocid and 
from an otariid; and
    (D) Whistles must be deployed at least 3 m away from a phocid and 
at least 2 m from an otariid; if both taxa are

[[Page 53780]]

present, the minimum distance for phocids shall apply.


Sec.  216.114   Specific measures for deterring threatened and 
endangered marine mammals.

    (a) General. This section includes specific measures that are 
approved for deterring certain threatened and endangered marine 
mammals. The specific measures in this section must be followed in 
order for the protection from liability provided by MMPA section 
101(a)(4)(A) to apply should the death or serious injury of a marine 
mammal listed as endangered or threatened under the Endangered Species 
Act result from the deterrence action.
    (b) Mysticetes. All deterrents included in the guidelines in Sec.  
216.113(b) are allowed for deterring mysticetes listed as threatened or 
endangered under the Endangered Species Act subject to the specified 
use conditions identified in Sec.  216.113(b).
    (c) Odontocetes--(1) Beluga whales, Cook Inlet Distinct Population 
Segment. (i) Visual deterrents pursuant to paragraphs (c)(1)(i)(A) 
through (E) of this section are approved.
    (A) Bubble curtains are approved.
    (B) Flashing or strobe lights are approved provided the lights 
conform to any standards established by Federal law.
    (C) Predator shapes are approved.
    (D) Vessel patrolling of fishing gear is approved provided the user 
maintains a consistent and safe speed, in compliance with any and all 
applicable speed limitations, and fixed direction to avoid coming into 
contact with the whale.
    (E) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals; and
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal.
    (ii) Water hoses, sprinklers, and water guns are approved tactile 
deterrents provided the user abides by the following:
    (A) Tactile deterrents must only strike the posterior end of an 
animal's body, taking care to avoid the animal's head and blowhole; and
    (B) Water deterrents must impact near an animal before striking the 
animal.
    (2) False killer whales, Main Hawaiian Islands Insular Distinct 
Population Segment. (i) Visual deterrents pursuant to paragraphs 
(c)(2)(i)(A) through (E) of this section are approved.
    (A) Bubble curtains are approved.
    (B) Flashing or strobe lights are approved provided the lights 
conform to any standards established by Federal law.
    (C) Predator shapes are approved.
    (D) Vessel patrolling of fishing gear is approved provided the user 
maintains a consistent and safe speed, in compliance with any and all 
applicable speed limitations, and fixed direction to avoid coming into 
contact with the whale.
    (E) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals; and
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal.
    (ii) Blunt objects, such as blunt tip poles and brooms, deployed 
manually as well as water hoses, sprinklers, and water guns are 
approved tactile deterrents provided the user abides by the following:
    (A) Blunt objects must be deployed using a prodding motion;
    (B) Tactile deterrents must only strike the posterior end of an 
animal's body, taking care to avoid the animal's head and blowhole; and
    (C) Water deterrents must impact near an animal before striking the 
animal.
    (3) Killer whales, Southern Resident Distinct Population Segment. 
(i) Visual deterrents pursuant to paragraphs (c)(3)(i)(A) through (E) 
of this section are approved.
    (A) Bubble curtains are approved.
    (B) Flashing or strobe lights are approved provided the lights 
conform to any standards established by Federal law.
    (C) Predator shapes are approved.
    (D) Vessel patrolling of fishing gear is approved provided the user 
maintains a consistent and safe speed, in compliance with any and all 
applicable speed limitations, and fixed direction to avoid coming into 
contact with the whale.
    (E) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals;
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal; 
and
    (5) When deploying a UAS from a motorized or non-motorized vessel, 
users shall follow approach regulations for killer whales in Washington 
at 50 CFR 224.103(e), and shall adhere to those approach requirements 
in the event any such requirement conflicts with the provisions of this 
subpart.
    (ii) Containment booms, waterway barriers, and log booms are 
approved physical barriers provided the user abides by the following:
    (A) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals;
    (B) Lines in the water shall be kept stiff, taut, and non-looping; 
and
    (C) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (iii) Foam projectiles propelled by a toy gun and water hoses, 
sprinklers, and water guns, are approved tactile deterrents provided 
the user abides by the following:
    (A) Tactile deterrents must strike the posterior end of an animal's 
body, taking care to avoid the animal's head and blowhole; and
    (B) Water deterrents must impact near an animal before striking the 
animal.
    (iv) Impulsive non-explosive acoustic deterrents pursuant to 
paragraph (c)(3)(iv)(A) of this section are approved.
    (A) Banging objects underwater is approved for deterring Southern 
Resident killer whales provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
other odontocetes within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed;
    (2) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed; and
    (3) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur no closer than required approach 
distances pursuant to 50 CFR 224.103(e) with a minimum of 18 seconds 
between strikes.
    (B) [Reserved]
    (v) Non-impulsive acoustic deterrents pursuant to paragraphs 
(c)(3)(v)(A) and (B) of this section are approved.
    (A) Acoustic alarms and predator sounds and alarm vocalizations of

[[Page 53781]]

marine mammals emitted by underwater speakers with source levels <170 
dB RMS are approved; any such emission by underwater speakers capable 
of producing sounds >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use such 
underwater speakers.
    (B) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (4) Sperm whales. (i) Visual deterrents pursuant to paragraphs 
(c)(4)(i)(A) through (E) of this section are approved.
    (A) Bubble curtains are approved.
    (B) Flashing or strobe lights are approved provided the lights 
conform to any standards established by Federal law.
    (C) Predator shapes are approved.
    (D) Vessel patrolling of fishing gear is approved provided the user 
maintains a consistent and safe speed, in compliance with any and all 
applicable speed limitations, and fixed direction to avoid coming into 
contact with the whale.
    (E) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals; and
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal.
    (ii) Containment booms, waterway barriers, and log booms are 
approved physical barriers provided the user abides by the following:
    (A) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals;
    (B) Lines in the water shall be kept stiff, taut, and non-looping; 
and
    (C) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (iii) Foam projectiles propelled by a toy gun; blunt objects, such 
as blunt tip poles, brooms, deployed manually; and water hoses, 
sprinklers, and water guns, are approved tactile deterrents provided 
the user abides by the following:
    (A) Blunt objects must be deployed using a prodding motion;
    (B) Tactile deterrents must only strike the posterior end of an 
animal's body, taking care to avoid the animal's head and blowhole; and
    (C) Water deterrents must impact near an animal before striking the 
animal.
    (iv) Impulsive non-explosive acoustic deterrents pursuant to 
paragraph (c)(4)(iv)(A) of this section are approved.
    (A) Banging objects underwater is approved for deterring sperm 
whales provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
other odontocetes within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed;
    (2) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed; and
    (3) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 3 m from the whale with a 
minimum of 18 seconds between strikes.
    (B) [Reserved]
    (v) Non-impulsive acoustic deterrents pursuant to paragraphs 
(c)(4)(v)(A) and (B) of this section are approved.
    (A) Acoustic alarms and predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170 
dB RMS are approved; any such emission by underwater speakers capable 
of producing sounds >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use such 
underwater speakers.
    (B) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (d) Pinnipeds. All deterrents included in the guidelines in Sec.  
216.113(d) are recommended specific measures for deterring pinnipeds 
listed as threatened or endangered under the Endangered Species Act 
identified in that subsection except for the Hawaiian monk seal and 
western Distinct Population of Steller sea lions in paragraphs (d)(1) 
and (2) of this section.
    (1) Hawaiian monk seal. (i) Air dancers, flags, pinwheels, and 
streamers; bubble curtains; flashing or strobe lights; human 
attendants; predator shapes; vessel patrolling; and UASs, are approved 
visual deterrents for Hawaiian monk seals provided the user abides by 
the following:
    (A) Flags, pinwheels, and streamers must be installed and 
maintained to reduce the risk of entanglement or entrapment of marine 
mammals.
    (B) Flashing or strobe lights must conform to any standards 
established by Federal law.
    (C) Vessel patrolling of fishing gear or property is approved 
provided the user maintains a consistent and safe speed, in compliance 
with any and all applicable speed limitations, and fixed direction to 
avoid coming into contact with a Hawaiian monk seal.
    (D) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals; and
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal.
    (ii) Containment booms, waterway barriers, and log booms are 
approved physical barriers to deter Hawaiian monk seals provided the 
user abides by the following:
    (A) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of seals;
    (B) Lines in the water shall be kept stiff, taut, and non-looping; 
and
    (C) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (iii) Tactile deterrents pursuant to paragraphs (d)(1)(iii)(A) 
through (E) of this section are approved.
    (A) Electric mats and electric fences are approved for Hawaiian 
monk seals provided the user abides by the following:
    (1) Electric mats shall not exceed 24V nominal; and
    (2) Electric fences shall be no more than 3000V and properly 
maintained to ensure required voltage and reduce the risk of 
entanglement or entrapment.
    (B) Foam projectiles propelled by a toy gun are approved for 
deterring

[[Page 53782]]

Hawaiian monk seals provided the foam projectile only strikes the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    (C) Non-toxic and water-soluble paintballs deployed using paintball 
guns and low velocity sponge grenades deployed using hand-held 
launchers are approved for deterring Hawaiian monk seals provided the 
user abides by the following:
    (1) Paintballs must be deployed at a minimum distance of 14 m from 
a phocid and 3 m from an otariid;
    (2) Sponge grenades must be deployed at a minimum distance of 14 m 
from a phocid and 10 m from an otariid; and
    (3) The paintball or sponge grenade must strike the posterior end 
of an animal's body, taking care to avoid the animal's head.
    (D) Blunt objects, such as blunt tip poles, brooms, deployed 
manually, are approved for deterring Hawaiian monk seals provided the 
user abides by the following:
    (1) Blunt objects must be deployed using a prodding motion; and
    (2) Blunt objects must only impact the chest or strike the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    (E) Water hoses, sprinklers, and water guns are approved to deter 
Hawaiian monk seals provided the user impacts an area near an animal 
before striking the posterior end of the animal's body, taking care to 
avoid the animal's head.
    (iv) Impulsive non-explosive acoustic deterrents pursuant to 
paragraphs (d)(1)(iv)(A) through (C) of this section are approved.
    (A) Banging objects underwater is approved for deterring Hawaiian 
monk seals provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
other marine mammals within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed;
    (2) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed; and
    (3) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 8 m away from a Hawaiian monk 
seal.
    (B) Banging objects in air, such as bells, and in-air passive 
acoustic deterrents, such as aluminum cans, are approved for deterring 
Hawaiian monk seals provided the user maintains a distance of at least 
2 m from the seal.
    (C) Low frequency, broadband devices and pulsed power devices with 
the following specifications are approved for deterring Hawaiian monk 
seals provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
cetaceans within 100 m before deploying low frequency, broadband 
devices and pulsed power devices; if the user cannot see 100 m due to 
darkness or weather conditions, low frequency, broadband devices and 
pulsed power devices shall not be deployed;
    (2) If cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices shall not be 
deployed;
    (3) If no cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices must maintain the 
appropriate silent interval and engage the devices according to the 
minimum distances specified in Table 2 to this paragraph 
(d)(1)(iv)(C)(3); if both phocids and otariids are present, the minimum 
distance for phocids shall apply.

 Table 2 to Paragraph (d)(1)(iv)(C)(3)--Minimum Silent Intervals and Distances for Low Frequency, Broadband and
                                              Pulsed Power Devices
----------------------------------------------------------------------------------------------------------------
                                                        Minimum silent
            Deterrent              Source level (RMS   interval between     Phocid pinniped    Otariid pinniped
                                         SPL)               signals        minimum distance    minimum distance
----------------------------------------------------------------------------------------------------------------
Pulsed Power Device.............  220 dB............  1,200 seconds (20   1 meter...........  1 meter.
                                                       minutes).
Low frequency, broadband device.  219 dB............  300 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  215 dB............  120 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  208 dB............  30 seconds........  4 meters..........  1 meter.
----------------------------------------------------------------------------------------------------------------

    (v) Non-impulsive acoustic deterrents pursuant to paragraphs 
(d)(1)(v)(A) through (C) of this section are approved.
    (A) Acoustic alarms, predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170 
dB RMS are approved for Hawaiian monk seals; any such emission by 
underwater speakers capable of producing sounds >=170 dB RMS must be 
evaluated and approved via the NMFS Acoustic Deterrent Web Tool before 
any attempt is made to use such underwater speakers.
    (B) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (C) Air horns, in-air noisemakers, sirens, and whistles with source 
levels <158 dB RMS are approved for deterring Hawaiian monk seals 
provided the user abides by the following:
    (1) Air horns must be deployed at least 4 m away from a Hawaiian 
monk seal;
    (2) In-air noisemakers must be deployed at least 5 m away from a 
Hawaiian monk seal;
    (3) Sirens must be deployed at least 2 m away from a Hawaiian monk 
seal; and
    (4) Whistles must be deployed at least 3 m away from a Hawaiian 
monk seal.
    (2) Steller sea lion, western Distinct Population Segment (DPS). 
The specific measures in this paragraph (d)(2) apply in Alaska where 
western DPS Steller sea lions commonly occur (all areas west of 
144[deg] W longitude and east of 144[deg] W longitude north of 
55[deg]49'22.00'' N) latitude unless otherwise specified in this 
section.
    (i) Air dancers, flags, pinwheels, and streamers; bubble curtains; 
flashing or strobe lights; human attendants; predator shapes; vessel 
patrolling; and UASs, are approved visual deterrents to deter western 
DPS Steller sea lions provided the user abides by the following:
    (A) Flags, pinwheels, and streamers must be installed and 
maintained to

[[Page 53783]]

reduce the risk of entanglement or entrapment of marine mammals.
    (B) Flashing or strobe lights must conform to any standards 
established by Federal law.
    (C) Vessel patrolling of fishing gear or property is approved 
provided the user maintains a consistent and safe speed, in compliance 
with any and all applicable speed limitations, and fixed direction to 
avoid coming into contact with the pinniped.
    (D) UAS are approved provided the user abides by the following:
    (1) Only vertical takeoff and landing aircraft are allowed;
    (2) Users shall fly UASs no closer than 5 m from an animal;
    (3) UAS altitude adjustments shall be made away from animals or 
conducted slowly when above animals;
    (4) A UAS shall hover over a target animal only long enough to 
deter the animal and shall not come in direct contact with the animal; 
and
    (5) When deploying a UAS, users shall follow approach regulations 
for endangered Steller sea lions in 50 CFR 224.103(d) and any other 
applicable approach regulations for marine mammals, and shall adhere to 
those approach requirements in the event any such requirement conflicts 
with the provisions of this subpart.
    (ii) Containment booms, waterway barriers, and log booms are 
approved physical barriers to deter western Steller sea lions provided 
the user abides by the following:
    (A) All containment booms, waterway barriers, and log booms shall 
be constructed, installed, and maintained to reduce the risk of 
entanglement or entrapment of marine mammals;
    (B) Lines in the water shall be kept stiff, taut, and non-looping; 
and
    (C) Booms/barriers must not block major egress and ingress points 
in channels, rivers, passes, and bays.
    (iii) Tactile deterrents pursuant to paragraphs (d)(2)(iii)(A) 
through (F) of this section are approved.
    (A) Electric mats and electric fences are approved for western 
Steller sea lions provided the user abides by the following:
    (1) Electric mats shall not exceed 24V nominal; and
    (2) Electric fences shall be no more than 3000V and properly 
maintained to ensure required voltage and reduce the risk of 
entanglement or entrapment.
    (B) Foam projectiles propelled by a toy gun are approved for 
deterring western Steller sea lions provided the foam projectile only 
strikes the posterior end of an animal's body, taking care to avoid the 
animal's head.
    (C) Non-toxic and water-soluble paintballs deployed using paintball 
guns and low velocity sponge grenades deployed using hand-held 
launchers are approved for deterring western Steller sea lions provided 
the user abides by the following:
    (1) Paintballs must be deployed at a minimum distance of 14 m from 
a phocid and 3 m from an otariid;
    (2) Sponge grenades must be deployed at a minimum distance of 14 m 
from a phocid and 10 m from an otariid; and
    (3) The paintball or sponge grenade must only strike the posterior 
end of an animal's body, taking care to avoid the animal's head.
    (D) Blunt objects such as rocks deployed via sling shot are 
approved for deterring western Steller sea lions provided the user 
abides by the following:
    (1) Blunt objects must first impact near an animal before striking 
an animal.
    (2) Blunt objects must only strike the posterior end of an animal's 
body, taking care to avoid the animal's head; and
    (3) Blunt objects deployed via sling shot must not be sharp or 
metallic.
    (E) Blunt objects, such as blunt tip poles, brooms, deployed 
manually, are approved for deterring western Steller sea lions provided 
the user abides by the following:
    (1) Blunt objects must be deployed using a prodding motion; and
    (2) Blunt objects must only impact the chest or strike the 
posterior end of an animal's body, taking care to avoid the animal's 
head.
    (F) Water hoses, sprinklers, and water guns, are approved to deter 
western Steller sea lions provided the user impacts near an animal 
before striking the posterior end of the animal's body, taking care to 
avoid the animal's head.
    (iv) Certain airborne impulsive explosive acoustic deterrents are 
allowed for western Steller sea lions east of 144[deg] W longitude and 
north of 55[deg]49'22.00'' N latitude as specified in paragraphs 
(d)(2)(iv)(A) and (B) of this section:
    (A) Aerial pyrotechnics, bird bangers, bird whistlers and 
screamers, and bear bangers used with pencil launchers, are approved 
provided they have a source level below 142 dB RMS and the user abides 
by the following:
    (1) Aerial pyrotechnics and bird bangers must detonate in air a 
minimum of 23 m from a phocid and a minimum of 2 m from an otariid; if 
both taxa are present, the minimum distance for phocids shall apply.
    (2) Bird whistlers and screamers must detonate in air a minimum of 
5 m from a phocid and a minimum of 2 m from an otariid; if both taxa 
are present, the minimum distance for phocids shall apply.
    (3) Bear bangers deployed by pencil launchers must detonate in air 
a minimum of 2 m from a pinniped; users shall aim in the air above and 
between themselves and the pinniped.
    (4) All necessary permits or authorizations from local, state, and/
or Federal authorities have been obtained, must be maintained onsite, 
and be available for inspection upon request by any authorized officer.
    (B) Propane cannons are approved for deterring pinnipeds provided 
the propane cannon is deployed at least 2 m from a western Steller sea 
lion.
    (v) Impulsive non-explosive acoustic deterrents pursuant to 
paragraphs (d)(2)(v)(A) through (C) of this section are approved.
    (A) Banging objects underwater is approved for deterring western 
Steller sea lions provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
other marine mammals within 100 m; if the user cannot see 100 m due to 
darkness or weather conditions, banging objects underwater is not 
allowed;
    (2) If Dall's porpoise, harbor porpoise, pygmy sperm whales or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater is not allowed; and
    (3) If no Dall's porpoise, harbor porpoise, pygmy sperm whales, or 
dwarf sperm whales are sighted within 100 m of the user, banging 
objects underwater must occur at least 8 m away from a phocid and at 
least 2 m away from an otariid with a minimum of 18 seconds between 
strikes; if both taxa are present, the minimum distance for phocids 
shall apply.
    (B) Banging objects in air, such as bells and in-air passive 
acoustic deterrents, are approved for deterring western Steller sea 
lions provided the user maintains a distance of at least 2 m from the 
animal; if phocids are present the user must maintain a distance of at 
least 24 m from the phocid.
    (C) Low frequency, broadband devices and pulsed power devices with 
the following specifications are approved for deterring western Steller 
sea lions provided the user abides by the following:
    (1) The user must first conduct a visual scan in all directions for 
cetaceans within 100 m before deploying low frequency, broadband 
devices and pulsed power devices; if the user cannot see 100 m due to 
darkness or weather conditions, low frequency, broadband devices and 
pulsed power devices shall not be deployed;

[[Page 53784]]

    (2) If cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices shall not be 
deployed;
    (3) If no cetaceans are sighted within 100 m of the user, low 
frequency, broadband devices and pulsed power devices must maintain the 
appropriate silent interval and engage the devices according to the 
minimum distances specified in Table 3 to this paragraph 
(d)(1)(v)(C)(3); if both phocids and otariids are present, the minimum 
distance for phocids shall apply.

  Table 3 to Paragraph (d)(1)(v)(C)(3)--Minimum Silent Intervals and Distances for Low Frequency, Broadband and
                                              Pulsed Power Devices
----------------------------------------------------------------------------------------------------------------
                                                        Minimum silent
            Deterrent              Source level (RMS   interval between     Phocid pinniped    Otariid pinniped
                                         SPL)               signals        minimum distance    minimum distance
----------------------------------------------------------------------------------------------------------------
Pulsed Power Device.............  220 dB............  1200 seconds (20    1 meter...........  1 meter.
                                                       minutes).
Low frequency, broadband device.  219 dB............  300 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  215 dB............  120 seconds.......  5 meters..........  1 meter.
Low frequency, broadband device.  208 dB............  30 seconds........  4 meters..........  1 meter.
----------------------------------------------------------------------------------------------------------------

    (vi) Non-impulsive acoustic deterrents pursuant to paragraphs 
(d)(2)(vi)(A) through (C) of this section are approved.
    (A) Acoustic alarms, predator sounds and alarm vocalizations of 
marine mammals emitted by underwater speakers with source levels <170 
dB RMS are approved for western Steller sea lions; any such emission by 
underwater speakers capable of producing sounds >=170 dB RMS must be 
evaluated and approved via the NMFS Acoustic Deterrent Web Tool before 
any attempt is made to use such underwater speakers.
    (B) Any non-impulsive acoustic deterrent capable of producing 
underwater sound >=170 dB RMS must be evaluated and approved via the 
NMFS Acoustic Deterrent Web Tool before any attempt is made to use the 
device. If the device meets the evaluation criteria, the user will 
receive a certificate authorizing use of the device as specified. The 
certificate must be maintained onsite and be available for inspection 
upon request by any authorized officer.
    (C) Air horns, in-air noisemakers, sirens, and whistles with source 
levels <158 dB RMS are approved for deterring western Steller sea lions 
provided the user abides by the following:
    (1) Air horns must be deployed at least 4 m away from a phocid and 
at least 2 m from an otariid; if both taxa are present, the minimum 
distance for phocids shall apply;
    (2) In-air noisemakers must be deployed at least 5 m away from a 
phocid and at least 2 m from an otariid; if both taxa are present, the 
minimum distance for phocids shall apply;
    (3) Sirens must be deployed at least 2 m away from a phocid and 
from an otariid; and
    (4) Whistles must be deployed at least 3 m away from a phocid and 
at least 2 m from an otariid; if both taxa are present, the minimum 
distance for phocids shall apply.


Sec.  216.115   Prohibitions.

    It is unlawful for any person subject to the jurisdiction of the 
United States to:
    (a) Target a deterrent action at a marine mammal calf or pup;
    (b) Strike a marine mammal's head or blowhole when attempting to 
deter a marine mammal;
    (c) Deploy or attempt to deploy a deterrent into the middle of a 
group of marine mammals;
    (d) Feed or attempt to feed a marine mammal as defined at Sec.  
216.3 for the purposes of deterrence;
    (e) Deter or attempt to deter a marine mammal demonstrating any 
sign of aggression, including charging or lunging, except when 
necessary to deter a marine mammal from endangering human safety;
    (f) Approach certain marine mammals listed under the Endangered 
Species Act pursuant to 50 CFR 223.214 and 224.103, including humpback 
whales in Alaska, North Atlantic right whales, western Steller sea 
lions, and killer whales in Washington, and approach other marine 
mammals pursuant to any other applicable approach regulations such as 
those at Sec.  216.19 and 15 CFR 922.184;
    (g) Discharge a firearm to deter any marine mammals under NMFS' 
jurisdiction, except as provided in Sec.  216.113(d)(4)(iii) and (iv);
    (h) Discharge a firearm at or within 100 yards (91.4 m) of a 
Steller sea lion west of 144[deg] W longitude per 50 CFR 
224.103(d)(1)(i);
    (i) Use a powerhead, as defined at 50 CFR 600.10, to deter a marine 
mammal;
    (j) Use, for deterring a marine mammal, any firearm, airsoft gun, 
or any other deterrent included in this section that has been altered 
from its original manufactured condition;
    (k) Use any projectiles deployed with a crossbow, bow, or spear gun 
to deter a marine mammal;
    (l) Use any sharp objects to deter a marine mammal;
    (m) Use patrol animals, such as guard dogs, for deterring 
pinnipeds;
    (n) Chase any marine mammals with a vessel;
    (o) Use any chemical irritants, corrosive chemicals, and other 
taste or smell deterrents to deter marine mammals;
    (p) Deploy explosives for deterring a marine mammal, except as 
provided in Sec. Sec.  216.113(d)(4) and 216.114(d)(2)(iv);
    (q) Deploy or attempt to deploy explosives without all valid and 
necessary local, state, and Federal permits onboard or onsite;
    (r) Deploy any underwater impulsive deterrents, including seal 
bombs, underwater cracker shells, banging objects, pulsed power 
devices, and low frequency broadband devices if visibility <100 m;
    (s) Deploy underwater cracker shells or use banging objects 
underwater if a Dall's porpoise, harbor porpoise, pygmy sperm whale, or 
dwarf sperm whale has been seen within 100 m in any direction during a 
visual scan prior to deployment;
    (t) Deploy seal bombs, pulsed power devices, or low frequency 
broadband devices if any cetaceans have been seen within 100 m in any 
direction during a visual scan prior to deployment;
    (u) Deploy any non-impulsive acoustic deterrent, including 
underwater speakers, capable of producing source levels >=170 dB RMS 
unless the certificate of approval from the NMFS Acoustic Deterrent Web 
Tool is onboard or onsite;
    (v) Tamper with NMFS Acoustic Deterrent Web Tool or falsify an 
approval certificate for any non-impulsive acoustic deterrent capable 
of

[[Page 53785]]

producing underwater sound >=170 dB RMS;
    (w) Fail to comply with the reporting requirements in Sec.  
216.116; and
    (x) Provide false information to the Assistant Administrator when 
reporting an injured or dead marine mammal pursuant to Sec.  216.116.


Sec.  216.116  Reporting requirements.

    (a) Any person engaged in deterring a marine mammal must report all 
observed mortalities and injuries of marine mammals pursuant to any 
such deterrence under the guidelines or specific measures in this 
subpart. Reports must be sent within 48 hours after the end of a 
fishing trip or within 48 hours of an occurrence of mortality or 
injury. Reports must be submitted to the Assistant Administrator and 
must provide:
    (1) The name and address of the person deterring the marine 
mammal(s);
    (2) The vessel name, and Federal, state, or tribal registration 
numbers of the registered vessel and/or the saltwater angler 
registration number if deterrence occurred during fishing;
    (3) A description of the fishery, including gear type and target 
catch, or of the property where the deterrence occurred;
    (4) A description of the deterrent, including number of attempts/
deployments, specifications of devices, and any other relevant 
characteristics;
    (5) The species and number of each marine mammal killed or injured 
in the course of deterrence or a description of the animal(s) killed or 
injured if the species is unknown;
    (6) The disposition of the animal (e.g., injured or dead, type of 
wounds);
    (7) The date, time, and approximate geographic location of such 
occurrence; and
    (8) Any other relevant information such as the behavior of the 
animal in response to the deterrent, other protected species in the 
area, etc.
    (b) [Reserved]

PART 229--AUTHORIZATION FOR COMMERCIAL FISHERIES UNDER THE MARINE 
MAMMAL PROTECTION ACT OF 1972

0
3. The authority citation for part 229 continues to read as follows:

    Authority:  16 U.S.C. 1361 et seq.; Sec.  229.32(f) also issued 
under 16 U.S.C. 1531 et seq.

0
4. In Sec.  229.4, revise paragraph (i) to read as follows:


Sec.  229.4  Requirements for Category I and II fisheries.

* * * * *
    (i) Deterrence. Persons engaged in a Category I or II fishery must 
comply with all deterrence prohibitions in 50 CFR 216.115 and are 
encouraged to follow the guidelines and recommended specific measures 
in 50 CFR part 216 to safely deter marine mammals from damaging fishing 
gear, catch, or other private property or from endangering personal 
safety.
* * * * *
0
5. In Sec.  229.5, revise paragraph (e) to read as follows:


Sec.  229.5   Requirements for Category III fisheries.

* * * * *
    (e) Deterrence. Persons engaged in a Category III fishery must 
comply with all deterrence prohibitions in 50 CFR 216.115 and are 
encouraged to follow the guidelines and recommended specific measures 
in 50 CFR part 216 to safely deter marine mammals from damaging fishing 
gear, catch, or other private property or from endangering personal 
safety.
* * * * *
[FR Doc. 2020-18718 Filed 8-28-20; 8:45 am]
BILLING CODE 3510-22-P

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