Chapter III — Marine Mammal/Fisheries Interactions 



noted that the measures recommended by the Atlantic 

 Offshore Cetacean Take Reduction Team did not 

 provide sufficient guarantees that marine mammal 

 takes would be reduced to allowable levels and did not 

 adequately address concerns about the bycatch of sea 

 turtles in this fishery. The Service also noted that the 

 cost of implementing the take reduction team's recom- 

 mendations would exceed the net value of the sword- 

 fish that are landed. The comment period on the 

 proposed rule closed on 14 December 1998 and it is 

 expected that a final rule will be issued in early 1999. 



Because of changes in circumstances that will occur 

 if the swordfish fishery is closed permanently to 

 driftnets, it is likely that the Service will reconstitute 

 the Atlantic Offshore Cetacean Take Reduction Team 

 to recommend additional actions to reduce marine 

 mammal mortalities and serious injuries in the off- 

 shore fisheries for swordfish, tuna, and sharks. 



Intentional Taking — Unlike the interim exemp- 

 tion that governed incidental taking between 1988 and 

 1995, the regime established under section 118 

 prohibits intentional lethal taking of marine mammals 

 in commercial fishing operations. The only exception 

 is if lethal taking is "imminently necessary in self- 

 defense or to save the life of another person in imme- 

 diate danger." 



Although intentional lethal take is not allowed, 

 fishermen and others may take marine mammals by 

 non-lethal means to deter them from damaging gear, 

 catch, or other property under certain circumstances. 

 Section 101(a)(4) of the Marine Mammal Protection 

 Act directs the National Marine Fisheries Service and 

 the Fish and Wildlife Service to publish a list of 

 guidelines to govern measures to be used in safely 

 deterring marine mammals. In the case of marine 

 mammals listed as endangered or threatened, the 

 Services are to recommend specific measures that can 

 be used to deter the animals non-lethally. The use of 

 certain types of deterrence measures that have a 

 significant adverse effect on marine mammals may be 

 prohibited. 



The National Marine Fisheries Service published 

 proposed deterrence regulations on 5 May 1995. The 

 Service offered guidance on passive, preventive, and 

 reactive measures that could be taken to deter marine 



mammals. The Service set forth four general princi- 

 ples regarding acceptable deterrence measures. In 

 addition to a statutory directive that such measures not 

 result in the death or serious injury of the animal, the 

 measures should not (1) result in the separation of a 

 female marine mammal from its unweaned offspring, 

 (2) break the skin of a marine mammal, (3) be direct- 

 ed at a marine mammal's head or eyes, or (4) be used 

 to deter pinnipeds hauled out on unimproved private 

 property. The Service also proposed to prohibit the 

 use of any firearm or other device to propel an object 

 that could injure a marine mammal, the use of any 

 explosive device to deter cetaceans or the use of 

 explosives more powerful than seal bombs to deter 

 seals or sea lions, translocation of any marine mam- 

 mal, or the use of tainted food or bait or any other 

 substance intended for consumption by the marine 

 mammal. Deterrence of marine mammals listed as 

 endangered or threatened under the Endangered 

 Species Act would not be authorized under the pro- 

 posed regulations. Rather, measures for safely 

 deterring listed species would be subject to a separate 

 rulemaking. The Commission's comments on the 

 proposed regulations are discussed in the 1995 annual 

 report. 



As of the end of 1998 final deterrence regulations 

 had yet to be published by the National Marine 

 Fisheries Service. The Fish and Wildlife Service had 

 not published any guidelines or proposed regulations 

 with respect to deterrence of those species of marine . 

 mammals under its jurisdiction. 



The Tuna-Dolphin Issue 



For reasons not fully understood, schools of large 

 yellowfin tuna (those greater than 25 kg or 55 pounds) 

 tend to associate with dolphin schools in the eastern 

 tropical Pacific Ocean. This area covers more than 5 

 million square miles (18.1 million km^) stretching 

 from southern California to Chile and westward to 

 Hawaii. Late in the 1950s U.S. fishermen began to 

 exploit this association by deploying large purse seine 

 nets around dolphin schools to catch the tuna swim- 

 ming below. Despite efforts by the fishermen to re- 

 lease the encircled dolphins unharmed, some animals 

 become trapped in the nets and are killed or injured. 



113 



