Abstract
The Marine Mammal Protection Act (MMPA) section 101(a)(4)(A), 16 U.S.C. 1371(a)(4)(A), 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. Section 101(a)(4)(B), 16 U.S.C. 1371(a)(4)(B), 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, section 101(a)(4)(B) 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 recommendations are not a violation of the act. Individuals and entities specified in section 101(a)(4)(A)(i)-(iv)(“specified persons”) may choose to deter marine mammals using deterrents not included in the guidelines, recommended specific measures, or prohibitions. However, if a marine mammal is killed or seriously injured as a result of such deterrence actions, the protection from liability in section 101(a)(4)(B) would not apply and the take could constitute a violation of the act. These guidelines and recommended specific measures are tailored for each species group (mysticetes, odontocetes, and pinnipeds). 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.
View on regulations.gov →