and incidentally, in set net, drift net, troll, and other 

 fisheries in California. Participants noted that depredation 

 by California sea lions and harbor seals of fish caught by 

 party boat fishermen, by gill net fisheries, and by salmon 

 troll fisheries could be caused by a small number of "nuisance" 

 animals who have learned that food is easy to obtain in the 

 vicinity of fishing gear and vessels or by a general cross- 

 section of animals present in fishing areas. Participants 

 pointed out that it might be possible to use non-lethal aversive 

 stimuli to frighten and keep seals and sea lions away from 

 fishing gear and fishing areas. They concluded that additional 

 studies should be done to evaluate this potential. Finally, 

 the participants noted that long-term monitoring of both the 

 affected fisheries and the affected marine mammal populations 

 is necessary to evaluate the relative advantages and disad- 

 vantages of measures taken to avoid or reduce interactions. 



The 1988 Marine Mammal Protection Act Amendments 



Although the Marine Mammal Protection Act, as noted 

 earlier, provided that the Secretaries of Commerce and the 

 Interior may issue permits authorizing the incidental take of 

 marine mammal species and populations that are at or above their 

 maximum net productivity (MNP) level, available information 

 often is insufficient to determine whether the affected marine 

 mammal species and populations are at, above, or below their 

 MNP level and what if any level of take can be sustained 

 without causing the species or population to be reduced or to 

 be maintained below its MNP level. Also, the Act prohibits 

 the take of depleted species and populations, except in a few 

 restricted instances such as for Native subsistence and for 

 research purposes, even in cases where the take would have 

 little or no effect on the recovery of the affected species 

 or population. 



In addition, as noted in Chapter II of this report, a 

 1988 decision by the United States Court of Appeals ( Kokechik 

 Fishermen's Association v. Secretary of Commerce , 839 F.2d 

 795, D.C. Cir. 1988) invalidated an incidental take permit 

 which the National Marine Fisheries Service had issued to the 

 Federation of Japan Salmon Fisheries Cooperative Association 

 and cast doubt on the Service's ability to issue incidental 

 take permits without sufficient information to demonstrate 

 that all species and populations likely to be taken are at or 

 above their MNP level. 



It was generally recognized that a total prohibition on 

 the incidental taking of depleted species could have severe 

 economic impact on certain U.S. fisheries. In addition, it 

 was clear that available information was insufficient to 

 accurately assess and determine how best to avoid or mitigate 



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