Under the Endangered Species Act, permission may be 

 granted to incidentally take endangered or threatened species 

 if it is determined that the activity involved is not likely 

 to jeopardize the continued existence of that species or to 

 result in the destruction or adverse modification of its 

 critical habitat. Because marine mammals designated as 

 endangered or threatened are considered to be depleted 

 species under the Marine Mammal Protection Act, section 

 101(a)(5) previously had enjoined the issuance of incidental 

 take authorizations under the Endangered Species Act when 

 endangered or threatened marine mammals were involved. In 

 order to conform the Marine Mammal Protection Act to the less 

 stringent provisions of the Endangered Species Act, section 

 101(a)(5) was amended to authorize the incidental take of 

 small numbers of depleted, as well as non-depleted, marine 

 mammals. 



Before issuing the Marine Mammal Protection Act inci- 

 dental take authorization under section 101(a)(5), the 

 Secretary is required to determine, after notice and comment 

 rulemaking, whether the proposed take will have a negligible 

 impact on the affected species or stock. If the taking would 

 have more than a negligible impact, the request may not be 

 granted. Authorization is limited to five consecutive years 

 and is subject to regulations that prescribe, among other 

 requirements, the permissible means of taking and the 

 measures that must be followed to cause the least practicable 

 adverse impact on the affected species or stock. 



The amendment to section 101(a)(5) also changed the 

 standard for the Secretary's review of the impact of the 

 proposed take on the availability of marine mammals for 

 subsistence uses by Alaska Natives. Prior to the amendment, 

 unless the Secretary determined that the requested take would 

 have a negligible impact on the availability of the species 

 for subsistence uses, the incidental take authorization could 

 not be issued. As a result of the amendment, the "negligible 

 impact" standard was changed to the requirement that the 

 incidental take would not have an "unmitigable adverse 

 impact" on the availability of marine mammals for subsistence 

 uses. In addition, the amendment added the requirement that 

 regulations be promulgated on methods of taking that would 

 have the least practicable impact on the availability of the 

 affected species or stock for subsistence uses by Alaska 

 Natives. 



During 1987, the National Marine Fisheries Service and 

 the Fish and Wildlife Service are expected to propose regula- 

 tions to implement the new requirements of section 101(a)(5). 

 The Marine Mammal Commission will review the proposed regu- 

 lations in consultation with its Committee of Scientific 

 Advisors. 



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