NMFS is issuing a final rule that amends the definition of "take" under the Marine Mammal Protection Act (MMPA) to include feeding marine mammals in the wild, and adds a new definition of "feeding." As a result, feeding dolphins, porpoise, whales, seals and sea lions in the wild will be prohibited unless the feeding is incidental to another activity such as the routine discard of fish bycatch or discharges from processing plants or vessels.
RULES and REGULATIONS
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 216
[Docket No. 900807-1050]
Feeding Populations of Marine Mammals in the Wild
Wednesday, March 20, 1991
ACTION: Final rule.
SUMMARY: NMFS is issuing a final rule that amends the definition of "take" under the Marine Mammal Protection Act (MMPA) to include feeding marine mammals in the wild, and adds a new definition of "feeding." As a result, feeding dolphins, porpoise, whales, seals and sea lions in the wild will be prohibited unless the feeding is incidental to another activity such as the routine discard of fish bycatch or discharges from processing plants or vessels.
EFFECTIVE DATE: April 19, 1991.
ADDRESSES: Dr. Nancy Foster, Director, Office of Protected Resources, National Marine Fisheries Service, 1335 East-West Highway, Silver Spring, MD 20910.
FOR FURTHER INFORMATION CONTACT: Margaret Lorenz, Office of Protected Resources, 301-427-2322; Douglas Beach, Northeast Region, 508-281-9254; James Lecky, Southwest Region, 213-541-6693; Eugene Nitta, Pacific Area Office, 808-955-8831; Jeff Brown, Southeast Region, 813-893-3366; Brent Norberg, Northwest Region, 206-526-6110; and John Sease, Alaska Region, 907-586-7233.
TEXT: SUPPLEMENTARY INFORMATION:
At a 1988 workshop to review and evaluate whale watching programs and similar activities that may affect wild populations of marine mammals, the participants recommended that NMFS issue regulations that would establish a minimum distance for anyone approaching whales and prohibit activities such as feeding wild populations of marine mammals. The participants expressed concern that the public's increasing interest in observing, approaching, and feeding marine mammals may cause biological problems for the marine mammals, and these activities may be a violation of the MMPA and the Endangered Species Act. NMFS is addressing the recommendations regarding minimum approach distances in a separate rulemaking.
On August 29, 1990, NMFS published a proposed rule (55 FR 35328) to amend the definition of "take" to include feeding marine mammals in the wild. The comment period ended November 8, 1990. Public hearings on the proposed rule were held in Panama City, Florida; Hilton Head Island, South Carolina; Corpus Christi, Texas; and Silver Spring, Maryland. In the same issue of the Federal Register (55 FR 35336), NMFS published its policy regarding applications for public display permits to approach, harass, and feed Atlantic bottlenose dolphins in the wild.
NMFS concluded that the potential adverse impacts on the populations of stocks of Atlantic bottlenose dolphin and the marine ecosystem outweigh the potential benefit of the proposed activities. NMFS concluded that issuing a permit authorizing an activity intended to directly or indirectly alter the natural and feeding behavior of groups of wild animals is not consistent with the purposes and policies of the MMPA. NMFS will not accept for review any applications requesting a public display permit for these types of activities.
Response to Comments
Comments were received from tour boat operators and customers, conservation groups, oceanaria groups, state wildlife agencies, scientists, the commercial fishing industry and the general public. Most of the comments concerned dolphin feeding cruises in the areas where public hearings were held. However, the purpose of the final rule is to prohibit feeding of other marine mammals under the jurisdiction of the Department of Commerce (seals, sea lions, whales, and porpoise) as well as dolphins.
Interactions with Humans
Comment: Several commenters support the proposed rule because they have observed individuals using fish or other food to entice dolphins to their boats and then harassing the dolphins by pouring beer down their throats, throwing fish in their blow holes, jumping on top of them, and trying to swim with them.
They believe that all feeding must be prohibited (both by private boaters, commercial tour boat operators, and others) so that marine mammals will not be encouraged to interact with humans.
Response: NMFS agrees that the prohibition should apply to both private boaters as well as commercial tour boat operators, and any other platform used for the purpose of feeding marine mammals in the wild.
Comment: Feeding dolphins in the wild has been an exciting and rewarding educational experience for many people of all ages. This is the only opportunity for many people to interact with marine mammals in their natural environment rather than in captivity. Feeding promotes an interest in the environment.
Response: NMFS agrees that close contact with marine mammals can be a rewarding experience in many ways. However, we have determined that activities with the purpose of giving or offering food is not in the animals' best interests. We believe that observing, rather than feeding, marine mammals in the wild, can be an equally rewarding and educational experience, and will not harm the animals if NMFS' guidelines and/or regulations are followed.
Comment: Both the State of South Carolina Wildlife and Marine Resources Department and the State of Florida Department of Natural Resources support the proposed rule and agree with NMFS' findings that feeding marine mammals in the wild may significantly change their behavior by disrupting their normal feeding patterns.
In recent years since feeding dolphins has become popular by recreational and commercial tour boat operators, marine scientists from the State of South Carolina have documented changes in bottlenose dolphin behavior. These changes include an increasing number of dolphins feeding off discarded fish around commercial fishing boats. Previous interactions between commercial fishing and dolphins centered around the dolphins riding bow wakes or briefly investigating nets. Also, a state conservation officer and biologist reported that a dolphin approached their boat and actually launched itself out of the water and rested on the gunwale on the side of the boat.
One commenter noticed a change in the behavior of dolphins being studied in the Corpus Christi Bay (Texas) area. The animals are becoming so familiar with people that they seem to be losing their natural fear of humans. Another commenter stated that dolphins in Corpus Christi Bay are becoming so tame that they are coming inside the city marina itself and near the ship channel which increases the animal's chances for interacting with humans.
In Hilton Head, a commenter reported that when he started working on dolphin feeding cruises 3 years ago, about 5 to 7 dolphins regularly came to the boat. Now, 15 individual dolphins regularly approach the boat to be fed.
Response: NMFS shares the commenters' concern that feeding operations may be changing the natural behavior of marine mammals.
Transmitting Diseases Through Feeding
Comment: Several commenters expressed concern that feeding marine mammals could transmit diseases from humans to the animals and from animals to humans.
Open wounds on feeders and bites by the animals are possible routes for two-way transmission of disease. Marine mammals acquire infectious organisms through skin lesions, respiratory tract, or oral ingestion. Oral ingestion is the primary disease transmission route in feeding wild marine mammals due to microbially-contaminated food.
One commenter, who cited the example of a trainer bitten by a dolphin in captivity developing indolent ulcers in the region of the bite, wondered whether some humans who have been observed feeding dolphins by placing fish in their mouths, leaning off their boats, and having the dolphin take the fish were aware of their vulnerability to disease transmission if they were bitten by the dolphins.
Hazards to dolphins from bacterial infections include a lethal disease (erysipelas) that occurs either as acute sepiticemia or as chronic rhomboid lesions. It is usually transmitted to dolphins via contaminated fish. Several other bacterial infections and Scombroid poisoning have been documented as occurring in dolphins as a result of contact with humans.
Response: NMFS is aware that the potential exists for transmission of diseases between marine mammals and humans (Wilkinson, 1990). Bites from marine mammals carry the attendant danger of infection and disease transmission common to any type of animal bite. Also, there are a number of disease agents that are common to both humans and marine mammals although documentation of transmission is lacking.
Interaction with Boats
Comment: Some commenters do not agree with NMFS' position that feeding dolphins increases the likelihood that they will collide with boats. Because of their echolocation abilities, dolphins know exactly where the boats are at all times. Also, dolphins are very mobile animals, and they are able to avoid collisions with boats.
Other commenters agreed with NMFS' concern that feeding operations will increase the chances of marine mammals interacting with boats. As a member of a network to work with stranded marine mammals, one commenter has handled dead dolphins on the beaches that have had wounds that probably were inflicted by boat propellers. Some had apparently been hit by the boat itself. Propeller scars have been seen on live dolphins' fins and bodies. Several commenters stated that they have actually witnessed dolphins being hit by boat propellers, snagged by fish hooks, and chased down by high-powered motor boats.
Response: NMFS continues to believe that feeding marine mammals in the wild increases the likelihood of interactions with vessels which increases the chance of injuries to the animals. In addition to vessel strikes, NMFS is concerned that any activity that encourages vessel interactions and identifies vessels as food sources may increase the rate at which marine mammals forage around vessels, become entangled in fishing gear, or are even shot. Necropsy reports from the Washington, Oregon, and California coasts confirm that gunshot was a common cause of death in seals and sea lions. In 1989, six bottlenose dolphins were shot in the Gulf of Mexico and off the east coast of Florida presumably by those who perceived the animals were interfering with their activities. The Smithsonian Institution Stranding Network data identified entanglement as the cause of death for 10 bottlenose dolphins in the Gulf of Mexico in 1987 and 1989 and 15 off the east coast of Florida from 1984-1989. Observer data from the first year of a 5-year program instituted by Congress and implemented by NMFS to assess marine mammal incidental takes showed that 89 dolphins and porpoises were entangled in coastal gillnets and trawl fisheries.
Legal Authority to Issue Rule
Comment: NMFS must find that the feeding of wild marine mammals is a "take" within the meaning of the MMPA, and a regulatory definition that expands the meaning beyond the disturbing or molesting standard of the current regulation is not consistent with the definition of "take" in the MMPA.
Response: "Take" is defined by the MMPA to mean "to harass, hunt, capture or kill or attempt to harass, hunt, capture, or kill any marine mammal." NMFS has the authority to interpret further the terms used in the MMPA. NMFS believes that this regulatory interpretation of the term "take" is consistent with the underlying statutory definition because feeding wild marine mammals has the potential to harm them in several ways. Marine mammals may be killed either directly from the feeding (e.g., by contracting a disease or by eating tainted food) or indirectly, through behavior modification (e.g., from exposure to cold weather if migration patterns change or from entanglement in fishing gear).
Although "harassment" is not defined in the MMPA, its legislative history indicates a Congressional intent that the term be interpreted broadly, and NMFS believes that feeding marine mammals in the wild constitutes harassment. Also, including feeding within the scope of "harassment" is consistent with NMFS' previous use of the term. In its January 4, 1989, (52 FR 44915) Notice of Interpretation of "Taking by Harassment" in regard to humpback whales in the Hawaiian Islands area, NMFS stated that "any * * * act or omission that substantially disrupts the normal behavioral pattern of a humpback whale is also presumed to constitute harassment." Feeding marine mammals in the wild disrupts their normal behavior, potentially resulting in serious harm, and should be considered to constitute "harassment."
The U.S. Fish and Wildlife Service (FWS) has adopted the following definition of "harass" under the MMPA (50 CFR 17.3): " 'Harass' in the definition of 'take' in the Act means an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to breeding, feeding, or sheltering."
Until now, NMFS has not felt the need to define specifically within the regulations every single act which is considered to be harassment. However, even after NMFS notified several tour boat operators that it considered feeding to be a form of harassment that the operators should end, the practice did not stop.
Discharge of Food Waste and Fish Bycatch
Comment: Does the feeding prohibition apply to discharge of ground food waste from offshore platforms which is regulated under Coast Guard regulations? Does the rule apply to the discarding of bycatch from fishing vessels or to the release of effluent or offal from fish-processing plants or factory ships?
Response: The purpose of the regulation is to prohibit intentional feeding of wild populations of marine mammals. Marine mammals often follow fishing vessels that are releasing bycatch (fish that is caught in addition to a target species such as shrimp), and marine mammals sometimes gather to feed near the outfall of fish processing plants. Some species of marine mammals are opportunistic feeders, and will follow fishing vessels knowing that food may be available.
Therefore, in addition to amending the definition of "take" to include feeding marine mammals in the wild, NMFS is defining "feeding" to further clarify what activities are considered a "take."
The definition states: "Feeding is offering, giving, or attempting to give food or non-food items to marine mammals in the wild. It includes operating a vessel or providing other platforms from which feeding is conducted. It does not include the routine discard of bycatch during fishing operations or the routine discharge of waste or fish byproducts from fish processing plants or other platforms if the discharge is otherwise legal and is incidental to operation of the activity."
Intentional vs. Unintentional Feeding
Comment: If feeding marine mammals in the wild is harmful, what is the distinction between a marine mammal eating food that is given for the purpose of attracting the marine mammal to a person or vessel and food that the marine mammal eats as the result of unintentional feeding such as bycatch that is regularly discarded from a fishing boat or fish byproducts from a processing plant.
Response: NMFS believes that, in some cases, the results or effects of unintentional feeding may also be harmful to marine mammals. However, NMFS is concerned that where the level of profit depends on the ability to attract marine mammals, the potential for adverse effects may be greater. This would also apply to individuals who feed marine mammals as part of a recreational activity because the level of enjoyment depends on that person's ability to attract marine mammals.
In addition, intentional feeding is a relatively new activity that should not be allowed to expand and to exacerbate the problems that have resulted from marine mammals' changing their natural feeding patterns because of human-related activities. By prohibiting intentional feeding activities, NMFS is reducing rather than significantly increasing these problems.
In addition, the issue of bycatch is being addressed by the Congress and the Federal government through other laws and regulations that are aimed at reducing the high levels of bycatch associated with commercial fishing.
Public Display Quotas
Comment: If NMFS decides that feeding marine mammals in the wild is a "take,"this should not count against the quotas for removal of marine mammals from the wild for public display. Activities in the wild should not be considered as "public display." Also, the rule as proposed could be applied to feeding activities presently being conducted under existing permits for scientific research or public display.
Response: NMFS has determined that feeding wild populations of marine mammals is a from of harassment and, therefore, prohibited unless an exception has been made. Removing animals from the wild for public display is considered under "capture" for which an exception has been made. Amending the definition of "take" and adding a new definition of "feeding" does not affect any quotas for removal of animals from the wild.
NMFS is currently considering the definition of "public display," and a proposed definition will be published for comment and review at a later date.
NMFS has already stated (55 FR 35336; August 29, 1990) that it will not consider any requests for public display permits for bottlenose dolphin feeding cruises.
A holder of a public display or scientific research permit already has an exception from the prohibition on "taking." Therefore, the rule will not affect those who are conducting activities under a permit or other authorization.
Lack of Scientific Data
Comment: The scientific evidence is insufficient to support a ban on feeding marine mammals in the wild.
Response: NMFS does not agree that a specific study on the effects of feeding marine mammals in the wild is necessary before NMFS can define feeding as a form of "harassment." It is the expert opinion of marine mammal scientists that feeding wild populations of animals may alter their behavior by disrupting social patterns, migration and feeding habits.
The Marine Mammal Commission, in consultation with its Committee of Scientific Advisors, made the following comments regarding the proposed rule to amend the regulatory definition of take: "Among other things, feeding marine mammals may: (1) Condition animals to approach vessels, piers, etc. where there is an increased likelihood that they will become entangled in fishing gear, be struck by vessels, or be shot, poisoned, or fed foreign objects; (2) cause animals to become dependent on such food sources and become less able to find and catch natural prey when feeding is discontinued; (3) alter migratory patterns, thereby subjecting animals to food shortages or inhospitable conditions that otherwise would be avoided; (4) condition animals to expect food from people, cause aggressive behavior when food is not offered; and (5) expose animals to and make them more susceptible to disease."
In considering passage of the Marine Mammal Protection Act, Sen. Robert Packwood said the following: "Scientists generally will state that our level of knowledge of marine mammals is very low * * *. Barring better and more information, it would, therefore, appear to be wise to adopt a cautious attitude toward the exploitation of marine mammals (Cong. Rec. S.15680 -- daily ed., Oct. 4, 1971)."
Wildlife Feeding Prohibitions by Other Federal Agencies
Comment: How does the prohibition on feeding marine mammals in the wild relate to prohibitions on feeding animals in National Parks? Isn't the purpose of prohibiting people from feeding animals such as bears in National Parks to protect the people from the animals and not vice versa?
Response: Several Federal agencies have taken action to protect animals from humans by prohibiting the feeding of animals in parks and wildlife refuges. While prohibiting the feeding of animals such as bears in National Parks may be primarily for the purpose of protecting humans, the National Park Service and the U.S. Fish and Wildlife Service (FWS) also prohibit feeding to protect animals from humans. For example, the FWS prohibits feeding waterfowl on its National Refuges because "regular feeding can cause dependency on people for food, bird/people conflicts, and spread of disease." At the Key Deer Refuge (Florida), the feeding of deer is prohibited because it is detrimental to the well-being of the species. One concern cited is that deer that are accustomed to being hand fed lose their natural fear of humans and become easy targets for poachers. In both examples, the FWS did not conduct any specific scientific studies to support its ban on feeding (pers. comm. Nancy Marks, FWS).
Economic Impact to Local Communities
Comment: The economic impact of the eight tour boat operations to the local community of Panama City, Florida, is estimated to be in excess of $6 million. A prohibition on feeding dolphins will adversely impact the local economy of this community and other coastal areas where "dolphin feeding" tours operate. Other commeters support the proposed rule because it does not prevent tour boat operators from taking customers out on cruises to watch marine mammals in their natural environment. Some of the tour boat operators who currently operate "dolphin feeding" cruises, operated successful sightseeing cruises long before dolphin feeding cruises became popular, and they can return to these operations that do not involve feeding marine mammals without it affecting their business.
Response: Dolphin feeding cruises are frequently combined with other sight- seeing acitvities such as viewing fish, marine mammals, sea birds and other natural resources. Since there are usually reasons other than feeding dolphins for taking these excursions, there is no way to know whether the number of passengers taking these trips will decline if dolphin feeding is not a part of the excursion. Tourists come to these coastal areas for many reasons, and there is no reason to believe they will not continue to come to coastal areas if feeding marine mammals is prohibited. They can continue to take sightseeing trips on boats to observe marine life because this rule only prohibits feeding; it does not prohibit trips to observe marine mammals and other sea life.
Also, in the legislative history of the MMPA, Congress stated that "The effect of this set of requirements is to insist that the management of the animal populations be carried out with the interest of the animals as the prime consideration * * *. The primary objective of this management must be to maintain the health and stability of the marine ecosystem; this in turn indicates that the animals must be managed for their benefit and not for the benefit of commercial exploitation (H. Rep. No. 707, 92nd Cong., 1st Sess. 18, 22 (Dec. 4, 1971))."
Compliance with 16 U.S.C. 1373
Comment: NMFS should comply with the section of the MMPA that requires certain factors, such an existing and future levels of marine mammal species and population stocks, to be considered when prescribing regulations on taking marine mammals.
Response: This regulation does not allow a "take" of marine mammals, rather it further defines the meaning of the word. Therefore, NMFS is not required to consider the factors in 16 U.S.C. 1373.
Marine Mammal Feeding Should be Regulated, Not Prohibited
Comment: Instead of prohibiting feeding cruises, they should be regulated. For example, give permits or licenses to tour boat operators that would include requirements for who may do the feeding, what type of food may be used and how it should be stored. Also, require the operators to include educational programs as a part of the feeding, and restrict the number of licensed cruises.
Response: NMFS denied a request for a public display permit to feed Atlantic bottlenose dolphins as part of cruises to observe dolphins. NMFS denied the request based on a finding that the proposed taking is not consistent with the purpose and policy of the MMPA. NMFS concluded that the potential adverse impacts on the bottlenose dolphin outweigh the potential benefit of the feeding.
NMFS believes that development and advertising of commercial feeding programs may increase the opportunity and encourage recreational and other boaters to feed dolphins. Although the applicant indicated that due regard would be paid to the animals' safety by restricting the activity of his vessel and clients, he cannot ensure that the animals will not approach other vessels where safeguards do not exist. Also, the dead fish offered to the animals might condition them to seek other dead fish such as those found on baited hooks or in fish nets.
Captivity and Other Takings of Marine Mammals vs. Feeding Programs
Comments: Activities that involve feeding marine mammals in the wild seem harmless in comparison to the taking (usually killing) of marine mammals incidental to commercial fishing and other activities and the permanent removal of marine mammals from the wild for public display?
Response: NMFS regulates and manages the "taking" of marine mammals based on the mandates of the Marine Mammal Protection Act. The MMPA allows a "take" of marine mammals incidental to commercial fishing and other activities. However, since the MMPA was enacted in 1972, NMFS has spent a major portion of its time and efforts to reduce the incidental take of marine mammals and marine species incidental to commercial fishing.
Also, the Congress provided for permits for the public display of marine mammals. Applicants for public display permits must offer a program for education or conservation purposes consistent with the policies and purposes of the MMPA. Removals from the wild under the permit system managed by NMFS are allowed only if a determination is made that the capture will have no significant adverse impact on the affected populations or the ecosystem of which they are a part. In addition, facilities and feeding operations are regulated and monitored.
NMFS did not receive any new information during the public comment period that would change the conclusion of the proposed rule which stated that feeding populations of marine mammals in the wild is harmful because it disrupts their natural behavior and normal feeding patterns and, therefore, is contrary to the intent and purposes of the MMPA. Many commenters expressed positive emotions about their feeding encounters with marine mammals, especially dolphins.
However, the purpose of the MMPA is to protect these animals, and no matter how thrilling the experience may be for humans, NMFS has determined that it is not in the best interest of the animals to be fed by humans.
NMFS agrees with the American Society of Mammalogists' response to the proposed rule: "Wild marine mammals obtain their optimum diet through natural foraging. Feeding by humans will result in animals receiving uncontrolled types of food, unknown amounts of food and probably feeding on non-food items. Most agencies responsible for managing terrestrial, free-ranging mammals have learned through many years of experience that provisioning, both intentionally and unintentionally can have serious detrimental results to both the wildlife and the people. In this regard, marine mammals are no different. Marine mammals learn quickly to be attracted to vessels that have food. Once individual animals learn to use a human-fed source, it is difficult to stop the begging behavior.
This leaves the animals susceptible to economic conflicts with fishermen, entanglement in fishing gear and hazards associated with being close to a moving vessel. Intentional feeding only exacerbates animal-human conflicts. Natural movement patterns of marine mammals could be disrupted by providing artificial food sources. The quality of food provided by humans to free-ranging marine mammals also poses a health risk. Feeding wild marine mammals is an unnecessary and artificial manipulation of a species which carries with it potential risk."
NMFS prepared an environmental assessment for this rulemaking and concluded that there will be no significant impact on the human environment as a result of this rule.
The Under Secretary for Oceans and Atmosphere, NOAA, determined that this rule is not a "major rule" requiring a regulatory impact analysis under Executive Order (E.O.) 12291. The proposed regulations are not likely to result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, or government agencies; or (3) significant adverse effects on competition, employment, productivity, innovation, or on the ability of U.S.-based enterprises to compete with foreign-based enterprises in domestic or export markets.
The General Counsel of the Department of Commerce certified to the Small Business Administration that this rule, if adopted, would not have a significant economic impact on a substantial number of small entities since the regulations do not prohibit cruises or other activities involving the observation of marine mammals. As a result, a regulatory flexibility analysis was not prepared.
This rule does not contain collection-of-information requirements subject to the Paperwork Reduction Act. This rule does not contain policies with federalism implications sufficient to warrant preparing a federalism assessment under E.O. 12612.
Gales, N.J. 1980. Report to the Monkey Mia Reserve Management Committee: Recommendations for a Feeding Strategy for the Dolphins of Monkey Mia, Shark Bay, Australia. Report submitted to the Marine Mammal Commission, Washington, DC.
Marks, Nancy, 1990. Division of Refuges, U.S. Fish and Wildlife Service, Dept. of the Interior. Personal comment to Margaret Lorenz, NMFS.
Overstrom, Neal, A., Arthur D. Goren and H.W. Kaufman, 1987. A Resident Belukha Whale in Long Island Sound in Proceedings of the Second Marine Mammal Stranding Workshop, Miami, FL. A NMFS Technical Report In Press. pp. 358-378.
Wells, R.S., Irvine, A.B. and Scott, M.D. 1980. The Social Ecology of Inshore Odontocetes. In Herman, L.M., Cetacean Behavior Mechanisms and Functions. John Wiley and Sons, New York.
Wilkinson, Dean M. 1990. Public Health and Welfare. In Draft Report -- Program Review of the Marine Mammal Stranding Network. NMFS, Silver Spring, MD. pp. 57-65.
List of Subjects in 50 CFR Part 216
Administrative practice and procedure, Imports, Marine mammals, Penalties, Reporting and recordkeeping requirements, Transportation.
Dated: March 14, 1991.
William W. Fox, Jr.,
Assistant Administrator for Fisheries.
or reasons set forth in the preamble, 50 CFR part 216 is 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:
Authority: 16 U.S.C. 1361 et seq., unless otherwise noted.
2. In 216.3, a new definition of "feeding" is added in alphabetical order, and the definition of "take" is revised to read as follows:
* * * * *
Feeding is offering, giving, or attempting to give food or non-food items to marine mammals in the wild. It includes operating a vessel or providing other platforms from which feeding is conducted or supported. It does not include the routine discard of bycatch during fishing operations or the routine discharge of waste or fish byproducts from fish processing plants or other platforms if the discharge is otherwise legal and is incidental to operation of the activity.
* * * * *
Take means to harass, hunt, capture, collect, or kill, or attempt to harass, hunt, capture, collect, or kill any marine mammal. This includes, without limitation, any of the following: The collection of dead animals, or parts thereof; the restraint or detention of a marine mammal, no matter how temporary; tagging a marine mammal; 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.