Chapter IV — Marine Mammal-Fisheries Interactions 



been met when fisheries collectively are responsible 

 for killing or seriously injuring no more than 10 

 percent of a marine mammal stock's potential biologi- 

 cal removal level. 



The Commission pointed out that, at least concep- 

 tually, removals from a marine mammal stock would 

 have an insignificant biological impact if they are at 

 or below the stock's potential biological removal 

 level. Thus, it was not entirely clear how the Service 

 determined that biological insignificance would be 

 achieved at 10 percent of potential biological removal 

 levels. To clarify the issue, the Commission suggest- 

 ed a two-part analysis looking initially at the require- 

 ment that mortalities and serious injuries be reduced 

 to insignificant levels and secondly at the requirement 

 that the rate of incidental mortality and serious injury 

 approach zero. Under this approach, the Service 

 could assert that a take rate would have approached 

 zero when it is 10 percent or less of a stock's poten- 

 tial biological removal level. The Commission noted, 

 however, that for stocks with a large potential biologi- 

 cal removal level, it may be difficult to find that the 

 take rate is approaching zero when the 10 percent 

 threshold has been achieved. Thus, the Commission 

 suggested that the Service consider adopting a tiered 

 approach that establishes lower thresholds (e.g., 5 

 percent or 1 percent) for different ranges of potential 

 biological removal levels. 



The Commission also noted that merely looking at 

 the numbers of marine mammals killed or seriously 

 injured may be inadequate to determine if the zero 

 mortality rate goal has been achieved. It is also 

 important to consider the significance of those animals 

 to the population. The Commission noted, for exam- 

 ple, that removals consisting mostly or entirely of 

 reproductive females may not be insignificant to the 

 population, even at the proposed 10 percent threshold. 

 The Commission therefore recommended that the 

 Service consider ways in which it can tailor its 

 monitoring and reporting programs to obtain data on 

 the age, sex, and reproductive condition, as well as 

 the numbers of marine mammals that are killed or 

 injured incidental to commercial fishing operations. 



The discussion accompanying the proposed rule 

 created the false impression that participating in a 

 category I or category II fishery without registering 



would not constitute a violation of the Marine Mam- 

 mal Protection Act so long as no taking of a marine 

 mammal resulted. The Commission suggested lan- 

 guage to clarify that it is unlawful to engage in a 

 category I or II fishery without obtaining and main- 

 taining a current authorization. 



Section 101(a)(5)(E) of the Marine Mammal 

 Protection Act directs the Service to authorize, for a 

 period of up to three years, the incidental taking of 

 endangered and threatened marine mammals if, after 

 notice and opportunity for public comment, the 

 Service determines that (1) the incidental mortality 

 and serious injury from commercial fisheries will have 

 a negligible impact on the species or stock, (2) a 

 recovery plan has been or is being developed, and (3) 

 where required under section 118, a monitoring 

 program has been established, vessels in such fisheries 

 have registered, and a take reduction plan has been or 

 is being developed. The Service stated that the 

 proposed list of fisheries identified those fisheries 

 having interactions with listed species and that the 

 associated environmental assessment provided the data 

 necessary to make negligible impact determinations. 

 The Service therefore solicited public comment on 

 proposed findings for listed species. 



The Commission expressed concern that it and 

 others had not been given a reasonable opportunity to 

 comment on the Service's proposed determinations 

 regarding the take of endangered and threatened 

 species. The Commission noted that it was not clear 

 whether all of the necessary information to make the 

 findings had been provided. In addition, the informa- 

 tion that was provided was not presented in a way to 

 facilitate informed comment. More importantly, the 

 Service had not explained its rationale for believing 

 that such takes would have a negligible impact. The 

 Commission therefore recommended that, before 

 authorizing the take of endangered or threatened 

 marine mammals incidental to commercial fishing 

 operations, the Service publish for public review and 

 comment a separate Federal Register notice clearly 

 describing the stocks and fisheries for which it pro- 

 posed to make negligibility findings and clearly 

 explaining the basis for the proposed determinations. 



Based on the information provided by the Service, 

 the Commission made some general observations with 



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