MARINE MAMMAL COMMISSION - Annual Report for 1995 



respect to authorizing the take of listed species. For 

 some highly endangered species — e.g., right whales, 

 Hawaiian monk seals, and manatees — the Commis- 

 sion expressed the view that no level of mortality or 

 serious injury likely could be considered negligible. 

 Thus, it would be difficult to make a negligible impact 

 determination for such species in the face of any 

 fishery-related mortality or serious injury. The 

 Commission noted that it also would be difficult to 

 make a negligible impact determination for Steller sea 

 lions, which continue to decline despite considerable 

 reductions in taking incidental to commercial fisheries. 

 With respect to the western North Atlantic stock of 

 humpback whale, the Commission noted that the 

 Service identified 13 different Atlantic fisheries that 

 interact with the stock. Therefore, the Commission 

 suggested that the Service examine the cumulative 

 impacts of these fisheries before concluding that 

 mortalities and serious injuries from these fisheries are 

 negligible. With respect to the California-Washington 

 stock of sperm whale, the Commission noted that the 

 environmental assessment prepared by the Service 

 concluded that the drift gillnet fishery for thresher 

 shark, swordfish, and blue shark takes 15 times the 

 potential biological removal level calculated for that 

 stock. Absent further information on the nature of the 

 take or other justification, the Commission believed 

 that it would be difficult for the Service to conclude 

 that this take is negligible. 



The Commission also offered several drafting 

 suggestions to clarify various provisions of the pro- 

 posed rule. The Commission did not suggest any 

 changes to the proposed list of fisheries. 



Final Implementing Regulations — The National 

 Marine Fisheries Service published a final rule imple- 

 menting section 1 18 on 30 August 1995. To meet the 

 statutorily imposed deadline, that rule became effec- 

 tive on 1 September. Some, but not all, of the 

 Commission's recommendations were adopted. 



For instance, the Service did not incorporate any of 

 the suggested changes to the proposed criteria for 

 classifying fisheries. The Service declined to adopt an 

 approach that considered incidental take rates rather 

 than absolute numbers of marine mammals killed or 

 seriously injured because of its mandate under the 

 1994 amendments to focus limited agency resources 



on those fisheries that have biologically significant 

 levels of take. Also, the Service indicated that it did 

 not have the capability to collect the requisite effort 

 data for determining take rates. 



The Service also dismissed the risk that a fishery 

 would be downlisted as a result of splitting it into 

 multiple fisheries. While acknowledging that some 

 category I fisheries could be split into two or more 

 category II fisheries, the Service noted that this would 

 have only minimal practical effect — vessels partici- 

 pating in either category of fishery must register, 

 carry observers as requested, and comply with take 

 reduction plans. The Service believed it unlikely that 

 any fishery could be placed in category HI by splitting 

 a category I or II fishery. 



As to how it will determine whether reported 

 injuries are "serious," the Service stated that it was 

 developing guidelines for making such determinations. 

 As noted in its final rule, the Service will require 

 vessel owners to describe the nature of the injury on 

 the reporting form. It expects to use that information 

 to judge which injuries are serious on a fishery-by- 

 fishery and case-by-case basis. 



As under the proposed rule, the final rule excludes 

 treaty Indian tribes from coverage under the inciden- 

 tal-take regime. Indians covered by such treaties who 

 fish in their usual and accustomed fishing grounds 

 need not register or comply with any other provision 

 of the regulations. As to the potential effect that such 

 an exclusion may have on other fishermen, the 

 Service noted that it had in place or was working on 

 establishing cooperative arrangements with the tribes 

 to secure data on marine mammal-fishery interactions. 



Despite a clear statement in section 1 18(c)(3)(C) of 

 the Marine Mammal Protection Act that it is in viola- 

 tion of the Act to engage in a category I or II fishery 

 without obtaining and maintaining a current incidental- 

 take authorization, the Service declined to incorporate 

 this requirement as a prohibition in the final rule. 

 Instead, the Service opted to include a regulatory 

 requirement that fishermen participating in such 

 fisheries "must register for and receive an authoriza- 

 tion certificate." Presumably fishing in a category I 

 or category II fishery without such a certificate would 

 constitute a violation of the regulations. 



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