proposed U.S. rule for preventing harassment (fwd)

From: Pita Admininstrator (
Date: Wed Feb 06 2002 - 19:43:42 EST

[Federal Register: January 30, 2002 (Volume 67, Number 20)]
[Proposed Rules]
[Page 4379-4382]

>From the Federal Register Online via GPO Access []

National Oceanic and Atmospheric Administration
50 CFR Part 216

Preventing Harassment From Human Activities Directed at Marine Mammals in
the Wild

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

ACTION: Advance notice of proposed rulemaking.


SUMMARY: NMFS is considering whether to propose regulations to protect
marine mammals in the wild from human activities that are directed at the
animals and that have the potential to harass the animals. The scope of
this advance notice of proposed rulemaking (ANPR) encompasses any activity
of any person or conveyance engaged in direct interactions with marine
mammals in the wild. NMFS requests comments on what type of regulations
and other measures would be appropriate to prevent harassment of marine
mammals in the wild caused by human activities directed at the animals.

DATES: Comments must be received at the appropriate address or fax number
(see ADDRESSES) no later than April 1, 2002.

ADDRESSES: Comments on this Advance Notice of Proposed Rulemaking (ANPR)
should be addressed to Chief, Permits, Conservation and Education
Division, Office of Protected Resources, National Marine Fisheries
Service, 1315 East-West Highway, Silver Spring, MD 20910, or fax to

FOR FURTHER INFORMATION CONTACT: Trevor Spradlin, Office of Protected
Resources, 301-713-2289.



Viewing whales, dolphins, porpoises, seals and sea lions in their natural
habitat can be an educational and enriching experience if conducted safely
and responsibly. Over the past decade, whale watching activities have
grown into a billion dollar ($US) industry involving over 80 countries and
territories and over 9 million participants (Hoyt 2001). Increasing
numbers of commercial operations are offering close interactions with wild
marine mammals, including opportunities to swim with, touch or handle the

As human interactions with wild marine mammals increase, the risk of
disturbing or injuring the animals also increases. The following human
activities directed at marine mammals in the wild are of particular
concern to NMFS:

``Swim-with'' activities: Over the past several years, swimming with wild
dolphins has significantly increased in the Southeast U.S. and Hawaii, and
is beginning to expand to other U.S. coastal areas and to other species of
marine mammals. In the Southeast, swimming with bottlenose dolphins
appears to be facilitated by illegal feeding activities, which have been
prohibited since 1991 when NMFS amended the definition of ``take'' under
50 CFR 216.3 to include feeding or attempting to feed a marine mammal (56
FR 11693, March, 20, 1991). In Hawaii, where feeding of wild dolphins has
not been a concern, swim activities primarily target Hawaiian spinner
dolphins and take advantage of the dolphins' use of shallow coves and bays
during the day to rest and care for their young. In the Southwest, tour
operators are offering opportunities to dive and swim with gray whales,
pilot whales, Pacific white-sided dolphins, harbor seals, and sea lions.

Vessel-based interactions: The use of motorized or non-motorized vessels
(e.g., outboard or inboard boats, kayaks, canoes, underwater scooters, or
other types of water craft) to interact with marine mammals in the wild is
also a rapidly growing activity nationwide. For example, NMFS has received
complaints from researchers and members of the public that include: (1)
operators of motorized vessels driving through groups of dolphins in order
to elicit bow-riding behavior (e.g., bottlenose dolphins in the Southeast,
spinner dolphins in Hawaii, Dall's porpoise in the Northwest); (2)
kayakers and canoers utilizing the quiet nature of their vessels to
closely approach and observe or photograph cetaceans and pinnipeds (e.g.,
killer whales in the Northwest, large whales and pinnipeds in California
and the Northeast); (3) whale watchers attempting to touch and pet gray
whales in California; (4) people using underwater ``scooters'' to closely
approach, pursue and interact with the animals (e.g., dolphins in the
Southeast); and (5) operators of personal watercraft tightly circling or
crossing through groups of dolphins, often at high speed, to closely
approach, pursue and interact with the animals (e.g., dolphins along the
mid-Atlantic and Gulf of Mexico).

Land-based interactions: Public interactions with marine mammals on land
have increased in recent years. Elephant seals, harbor seals and sea lions
in the Southwest, and monk seals in Hawaii, are closely approached by
people for the purpose of observing them, posing with them for pictures,
touching, petting, poking, throwing objects at them to elicit a reaction,
or simply strolling among them.

Researchers monitoring the effects of human disturbance on wild marine
mammals report boat strikes, disruption of behaviors and social groups,
separation of mothers and young, abandonment of resting areas, and
habituation to humans (for some examples, see Kovacs and Innes 1990, Kruse
1991, Janik and Thompson 1996, Wells and Scott 1997, Christie 1998,
Samuels and Bejder 1998, Bejder et al. 1999, Colborn 1999, Constantine
1999, Cope et al. 1999, Mortenson et al. 2000, Samuels et al. 2000,
Constantine 2001, Lelli and Harris 2001, Nowacek et al. 2001).

In addition, there are significant public safety considerations as people
have been seriously injured while trying to interact with wild marine
mammals. People have been bitten or otherwise injured while trying to
closely approach, feed, swim with, pet or interact with wild cetaceans or
pinnipeds (Webb 1978, Shane et al. 1993, NMFS 1994, Wilson 1994, Orams et
al. 1996, Seideman 1997, Christie 1998, Samuels and Bejder 1998, Samuels
et al. 2000). In one case, a dolphin killed a swimmer who was harassing
the animal (Santos 1997). Some marine mammals that have injured people
have been labeled as ``nuisance animals,'' and individuals have requested
the animals be removed from the wild or euthanized.

The Marine Mammal Protection Act of 1972, 16 U.S.C. 1361 et seq. (MMPA),
prohibits the ``take'' of marine mammals which includes ``harassment.''
Section 3(13) of the MMPA defines the term ``take'' as ``to harass, hunt,
capture, or kill, or attempt to harass, hunt, capture, or kill any marine
mammal.'' Section 3(18)(A) of the MMPA defines the term ``harassment'' as
``any act of pursuit, torment, or annoyance which - (i) has the potential
to injure a marine mammal or marine mammal stock in the wild, (Level A
harassment), or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering (Level B harassment).''

In addition, NMFS regulations implementing the MMPA specify that the term
``take'' includes: the negligent or intentional operation of an aircraft
or vessel, or the doing of any other negligent or intentional act which
results in disturbing or molesting a marine mammal; and feeding or
attempting to feed a marine mammal in the wild (50 CFR 216.3).

The MMPA does not provide for a permit or other authorization process to
view or interact with wild marine mammals, except for specific listed
purposes such as scientific research. Therefore, interacting with wild
marine mammals should not be attempted, and viewing marine mammals must be
conducted in a manner that does not harass the animals. NMFS cannot
support, condone, approve or authorize activities that involve closely
approaching, interacting or attempting to interact with whales, dolphins,
porpoises, seals or sea lions in the wild. This includes attempting to
swim with, pet, touch or elicit a reaction from the animals. NMFS believes
that such interactions constitute ``harassment'' as defined in the MMPA
since they involve acts of pursuit, torment or annoyance that have the
potential to injure or disrupt the behavioral patterns of wild marine

Each of the five NMFS Regions has developed recommended viewing guidelines
to educate the general public on how to responsibly view marine mammals in
the wild and avoid harassing them (e.g., minimum approach distances for
observing the animals on land or on board a vessel; use binoculars or
telephoto lenses to get a good view of the animals; limit observation time
to 30 minutes or less). NMFS Regional Wildlife Viewing Guidelines for
Marine Mammals are available on line at: http://

NMFS recognizes that there are situations where wild marine mammals will
approach people on their own accord, either out of curiosity or to ride
the bow wave/surf the stern wake of a vessel underway. If wild marine
mammals approach a vessel underway, NMFS recommends that the vessel
maintain its course and avoid abrupt changes in direction or speed to
avoid running over or injuring the animals. Vessels that are stationary
should remain still to allow the animals to pass. If wild marine mammals
enter an area used by swimmers or divers, NMFS recommends avoiding abrupt
movements and moving away. Under no circumstances should people try to
feed, touch, pet, ride or chase marine mammals in the wild.

To support these guidelines, NMFS initiated a nationwide education and
outreach program and in 1997 expanded its efforts by developing the
``Protect Dolphins'' campaign to address growing concerns about feeding
and harassment activities with wild dolphins in the Southeast. In 1998,
NMFS further expanded its education and outreach efforts by joining
Watchable Wildlife, a consortium of federal and state wildlife agencies
and wildlife interest groups that encourages passive viewing of wildlife
from a distance for the safety and well-being of both animals and people
(Duda 1995, Oberbillig 2000).

The guidelines have relied on voluntary compliance by the public and
commercial operators. Although ``takes'' may be prosecuted under the MMPA,
the guidelines themselves are not enforceable. After more than a decade of
extensive efforts to promote NMFS' educational message and marine mammal
viewing guidelines, noncompliance continues. For example, advertisements
on the Internet and in local media in Hawaii, California and Florida are
promoting activities that clearly contradict the NMFS guidelines and
appear to depict harassment of the animals. NMFS has received letters from
the Marine Mammal Commission (MMC), members of the scientific research
community, environmental groups, the public display community, and members
of the general public expressing the view that swimming with and other
types of interactions with wild marine mammals have the potential to
harass the animals by causing injury or disruption of normal behavior
patterns. NMFS has also received inquiries from members of the public and
commercial tour operators requesting clarification on NMFS' policy and the
MMPA restrictions on closely approaching, swimming with or interacting
with wild cetaceans.

The MMC sponsored a literature review by Samuels et al. (2000) to compile
information regarding human interactions with marine mammals in the wild.
Upon review of the report, the MMC stated: "The information and analyses
in the report provide compelling evidence that any efforts to interact
intentionally with dolphins in the wild are likely to result in at least
Level B harassment and, in some cases, could result in the death or injury
of both people and marine mammals.''

The MMC therefore recommended to NMFS that it ``promulgate regulations
specifying that any activity intended to enable in-water interactions
between humans and dolphins in the wild constitutes a taking and is
prohibited'' (Letter from MMC to NMFS dated May 23, 2000). Based on both
the scientific evidence and the legal framework of the MMPA, NMFS believes
that these concerns apply equally to all species of whales, dolphins,
porpoises, seals and sea lions.

On August 3, 1992, NMFS published proposed regulations (57 FR 34101) to
provide greater protection for marine mammals by specifying, among other
actions, minimum distances that people, vessels, and aircraft should
maintain from these animals to avoid harming them. NMFS withdrew the
proposed regulations on March 29, 1993 (58 FR 16519) to further evaluate
the comments received and to consider alternatives for addressing the
problem of close approach of marine mammals by vessels/ persons. Since
then, NMFS has continued to monitor the growing body of scientific
evidence regarding the impacts of human activities directed at marine
mammals in the wild, and NMFS has routinely received letters of concern
from researchers, wildlife protection groups and private citizens
regarding human interactions with wild marine mammals. As a result, NMFS
has concluded that development of a proposed rule to prevent harassment
from human activities directed at marine mammals in the wild may be

Request for Comments

NMFS is requesting comments on what type of regulations and other measures
would be appropriate to prevent harassment from human activities directed
at marine mammals in the wild. NMFS offers several possible options for
consideration and comment, and recognizes that other possibilities may
exist including a combination of the following:

Codify the current NMFS Regional marine mammal viewing guidelines -
Codifying the guidelines as regulations would make them requirements
rather than recommendations, and would provide for enforcement of these
provisions and penalties for violations.

Codify the current marine mammal viewing guidelines with improvements -
The current guidelines could be revised to more clearly address specific
activities of concern, and then codified as enforceable regulations.

Establish minimum approach rule - Similar to the minimum approach rules
for humpback whales in Hawaii and Alaska, and right whales in the North
Atlantic (50 CFR 224.103; 66 FR 29502, May 31, 2001), a limit could be
established by regulation to accommodate a reasonable level of wildlife
viewing opportunity while minimizing harassment from human activities
directed at marine mammals in the wild. If establishing a minimum approach
rule is appropriate, then NMFS would have to consider whether or not
distances should be specific to particular species and/ or Regions, and
whether or not distances should be consistent between vessel platforms and
from land. NMFS would consider exceptions for situations in which marine
mammals approach vessels or humans as well as other situations in which
approach is not reasonably avoidable.

Restrict activities of concern - Similar to the prohibition on feeding
wild marine mammals, a regulation amending the definition of ``take''
and/or ``harassment'' could clarify which specific activities are
prohibited, e.g., interacting or attempting to interact with a marine
mammal in the wild. Interaction would include swimming with, touching
(either directly or with an object), posing with, or otherwise acting on
or with a marine mammal. This would include interaction by any means or
medium, including interception, on land, on/in the water, or from the air.
It would also include operating a vessel or providing other platforms from
which interactions are conducted or supported.

Dated: January 24, 2002.
William T. Hogarth,
Assistant Administrator for Fisheries, National Marine Fisheries


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