MARINE MAMMAL COMMISSION — Annual Report for 1991 



The Commission also noted that the 14 June 

 Federal Register notice raised a number of additional 

 issues and questions. For example, the notice indicat- 

 ed that the International Agreement on the Conserva- 

 tion of Polar Bears, which entered into force in 1976, 

 is not self-executing and that "Congress has not imple- 

 mented the 1976 agreement under section 101(a) of 

 the [Marine Mammal Protection] Act." It concluded 

 that, because implementing legislation has not been 

 enacted, the polar bear agreement would not be an 

 impediment to the issuance of the final rule even if a 

 conflict existed. The Conmiission questioned this 

 conclusion and pointed out that, if implementing 

 legislation is needed, the Service has a responsibility 

 to so advise Congress. 



President Ford's 1975 memorandum transmitting 

 the polar bear agreement to the Senate for ratification 

 indicated that no implementing legislation beyond that 

 already contained in the Marine Mammal Protection 

 Act was needed. The Act does not provide a clear 

 means for protecting essential habitat, and the Com- 

 mission believes that some additional implementing 

 legislation may be needed to ensure that the United 

 States complies fully with its obligations as a party to 

 the polar bear agreement. The Commission therefore 

 recommended that the Service, in consultation with 

 the Commission, prepare a legislative proposal and 

 forward it to Congress for consideration as soon as 

 possible (see Chapter n for additional discussion of 

 this issue). 



In the Commission's view, neither the rule issued 

 by the Fish and Wildlife Service nor the rule promul- 

 gated by the National Marine Fisheries Service in July 

 1990 adequately identifies the monitoring require- 

 ments or the criteria that will be used to judge the 

 adequacy of monitoring plans submitted as part of 

 requests for letters of authorization to take marine 

 mammals incidental to oil and gas exploratory activi- 

 ties off Alaska. Likewise, neither rule reflects the 

 independent requirements of Marine Mammal Protec- 

 tion Act section 101(a)(5) that: (1) the incidental 

 taking of only small numbers of marine mammals may 

 be authorized, and (2) the taking may be authorized 

 only if it would have a negligible impact on the 

 affected species or stock. The Commission advised 

 the Fish and Wildlife Service of this in the previously 

 noted letter of 5 August 1991. 



The Commission conveyed its concerns to the 

 National Marine Fisheries Service in a separate letter 

 on 5 August 1991. In that letter, the Commission 

 noted that, while the Services may be unable to 

 provide a precise formulation of what constitutes 

 "small numbers," they nevertheless should be able to 

 articulate, on a case-by-case basis, the rationale for 

 determining that only small numbers of marine 

 mammals will be taken incidental to authorized 

 activities. The Commission recommended that, as a 

 matter of practice, each request for a letter of autho- 

 rization be reviewed to determine the number of 

 marine mammals (by species and, as possible, 

 age/size and sex) that could be taken in various ways 

 if the activity proceeds as planned, and that letters of 

 authorization subsequently issued: (1) specify when, 

 where, how, and how many marine mammals may be 

 taken incidentally in the course of the planned activi- 

 ties, and (2) require that the activities be suspended if 

 the monitoring program indicates that marine mam- 

 mals are being taken in ways or in numbers that are 

 not authorized. The Commission also recommended 

 that the National Marine Fisheries Service initiate 

 rulemaking to amend its definition of "small numbers" 

 to clarify that this requirement is distinct from the 

 "negligible impact" provision. 



The Commission noted that the workshop held in 

 February 1991 to develop site-specific monitoring 

 guidelines had been useful, but did not involve all 

 interested parties or address all relevant issues. It 

 recommended that, once the results of the 1991 

 monitoring programs are available, the National 

 Marine Fisheries Service, the Fish and Wildlife 

 Service, and the Minerals Management Service 

 cooperatively hold a follow-up workshop to: (1) 

 review the 1991 program results, (2) develop recom- 

 mended criteria for judging the adequacy of site- 

 specific monitoring plans provided with future re- 

 quests for letters of authorization, and (3) describe 

 such additional baseline and population monitoring 

 programs as will be required to detect any non-negli- 

 gible changes in the distribution, seasonal movement 

 patterns, abundance, or productivity of bowhead, 

 gray, and beluga whales, ice seals, walruses, and 

 polar bears caused by coastal and offshore oil and gas 

 exploration and any subsequent development. 



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