Chapter VIH — OCS Development 



walruses and polar bears incidental to pre- and post- 

 lease oil and gas exploration activities in the Chukchi 

 Sea. The Commission transmitted comments and 

 recommendations on the proposed rule to the Service 

 by letter of 18 April 1991. The Commission noted 

 that the Fish and Wildlife Service, like the National 

 Marine Fisheries Service, had defined "small num- 

 bers" to mean "a portion of a marine mammal species 

 or stock whose taking would have a negligible im- 

 pact." It pointed out that this definition failed to 

 recognize the distinction between the independent 

 requirements of Marine Mammal Protection Act 

 section 101(a)(5) that only takings of small numbers 

 may be authorized, and then only if such takings 

 would have a negligible impact on the species or 

 stock. In this context, the Commission pointed out 

 that Congress, in passing section 101(a)(5), recog- 

 nized the "imprecision of the term 'small take', but 

 was unable to offer a more precise formulation 

 because the concept is not capable of being expressed 

 in absolute numerical limits" (H.R. Report No. 228, 

 97th Congress, First Session 19(1981)). 



The Commission further pointed out that the statute 

 makes it clear that only the taking of small numbers 

 of marine mammals may be authorized. That is, the 

 legislative history explicitly states that the requirement 

 that the taking have a negligible impact is an "addi- 

 tional and separate safeguard." The Commission 

 recommended that, before issuing letters of authoriza- 

 tion, the Service estimate the numbers of each species 

 of marine mammal that might be taken and fully 

 explain its rationale for determining that those num- 

 bers are "small. " The Commission also recommended 

 that the proposed rule be amended to provide the 

 Commission and the public an opportunity to review 

 and comment on specific requests for letters of 

 authorization before they are issued. 



The Commission noted that the proposed rule 

 would establish general monitoring and reporting 

 requirements, and questioned whether the required 

 programs would provide sufficient information to 

 confirm that authorized activities have no more than 

 a negligible impact on the affected species and popula- 

 tions, and no unmitigable adverse impact on the 

 availability of those species for Native subsistence 

 uses. To facilitate further consideration of this issue, 

 the Commission provided a draft discussion paper 



describing the nature of, and rationale for, programs 

 required to meet the monitoring requirements of 

 section 101(a)(5) of the Act. The Commission 

 recommended that, before issuing letters of authori- 

 zation, the Service consult the Alaska Department of 

 Fish and Game and its own scientists to assess the 

 adequacy of the existing database and ongoing pro- 

 grams to monitor the status of walrus and polar bear 

 populations. The Commission also recommended that 

 the Service design and implement additional pro- 

 grams, as necessary, to verify the predicted effects 

 and detect any unforeseen effects of oil and gas 

 exploratory activities on these species and their 

 availability for subsistence use. In this context, the 

 Commission noted that the proposed small-take 

 authorization would be valid for no more than five 

 years and that authorization of further taking would be 

 problematic if the monitoring programs during the 

 initial five-year period are insufficient to document 

 that only small numbers of marine mammals were 

 taken and that the effects were negligible. 



The Fish and Wildlife Service published its final 

 rule in the Federal Register on 14 June 1991. The 

 rule reflected many, but not all, of the Commission's 

 18 April recommendations concerning the proposed 

 rule. The Commission noted this in a 5 August 1991 

 letter to the Service. Among other things, it pointed 

 out that the final rule did not provide an estimate of 

 the numbers of walruses and polar bears that might be 

 taken or explain the Service's rationale for determin- 

 ing that those numbers are "small" as required by the 

 Marine Mammal Protection Act and recommended by 

 the Commission. The Commission also pointed out 

 that the rule deferred the determination that taking 

 will be conducted so as to minimize any adverse 

 impacts on walruses, polar bears, and their habitat, 

 and on the availability of these species for subsistence 

 uses, until specific requests for letters of authorization 

 have been received, but provides no opportunity for 

 public review and comment on such requests as 

 recommended by the Commission. The Commission 

 also noted that, while discussion in the preamble to 

 the final rule indicated that the Service concurred with 

 the Commission's recommendations concerning 

 monitoring and reporting requirements, the rule itself 

 did not reflect those recommendations. 



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