MARINE MAMMAL COMMISSION - Annual Report for 1995 



tion for concluding that little, if any, illegal taking is 

 occurring. 



Under the interim exemption, fisheries were 

 classified based on all incidental take of marine 

 mammals, including animals that were harassed, 

 caught, and released unharmed and animals that were 

 entangled and able to free themselves. In contrast, 

 under section 118, only the frequency of incidental 

 mortality and serious injury is considered. Recogniz- 

 ing that it may be imprudent to allow individual 

 fishermen to determine which marine mammal injuries 

 are or are not serious, Congress adopted provisions 

 requiring fishermen to report all mortalities and 

 injuries, leaving it to the Service to determine which 

 injuries are serious. The requirement that fishermen 

 report all injuries was accurately reflected in the 

 proposed rule. Missing, however, was discussion of 

 how the Service would determine whether a reported 

 injury was serious. The Commission noted that 

 distinguishing between serious and other injuries is 

 important, not only for classification purposes but for 

 determining whether a stock's potential biological 

 removal level has been exceeded. The Commission 

 therefore recommended that the Service either expand 

 the reporting provisions to require the submission of 

 information sufficient to enable it to determine wheth- 

 er an injury is serious or otherwise adopt a mecha- 

 nism (e.g., generic or fishery-specific formulae) to 

 determine what proportion of reported injuries will be 

 considered to be serious. 



The Service proposed to exclude treaty Indian 

 tribes from coverage under section 118. Tribal 

 fisheries would not be included in the list of fisheries, 

 and participants in those fisheries would not be 

 required to register, report mortalities and serious 

 injuries, or comply with take reduction plans. 



The Commission expressed the view that this pro- 

 posal, at least in part, was based on a misinterpreta- 

 tion of the 1994 amendments. While the Commission 

 generally concurred with the Service's determination 

 that the Marine Mammal Protection Act does not 

 provide clear evidence that Congress "intended to 

 abrogate the [Makah] Tribe's treaty right of sealing at 

 usual and accustomed grounds and stations," the 

 Commission suggested that additional analyses were 

 needed before excluding tribal fisheries from the 



incidental-take regime. Noting that the Service 

 believed treaty tribes to be subject to the provisions of 

 the interim exemption, and that the intent of the 1994 

 amendments was to preserve the status quo, the 

 Commission maintained that a clear explanation was 

 needed as to why the Service does not believe section 

 1 18 to be similarly applicable. 



The Commission also noted the unique features of 

 the 1855 treaty between the United States and the 

 Makah. It is the only such treaty that explicitly 

 recognizes the "right of taking fish and of whaling or 

 sealing at usual and accustomed grounds and sta- 

 tions.. .." As such, the Commission suggested that the 

 Service explain why findings based on that treaty were 

 considered to be generally applicable to other tribes. 



By proposing to exclude tribal fisheries from all 

 provisions of section 118, the Service would make it 

 difficult to administer the incidental-take regime with 

 respect to non-Indian fishermen that take marine 

 mammals from the same stocks. Unless there is some 

 mechanism to determine the species and numbers of 

 marine mammals taken by tribal fisheries, the Service 

 will be unable to determine whether the total take 

 from the affected stocks exceeds potential biological 

 removal levels. In cases where there is any doubt, the 

 precautionary principle built into the Marine Mammal 

 Protection Act could preclude the Service from 

 allowing other fisheries to take any marine mammals 

 from those stocks. Therefore, the Commission 

 recommended that, if the Service concludes that tribal 

 fisheries are exempt from all requirements of section 

 118, including the reporting and monitoring provi- 

 sions, the Service pursue cooperative agreements with 

 tribal representatives to obtain reliable incidental-take 

 data from those fisheries so as to be able to regulate 

 incidental take in other fisheries. 



A key feature of the new incidental-take regime is 

 a directive that incidental mortality and serious injury 

 of marine mammals resulting from commercial fishing 

 operations be reduced to insignificant levels approach- 

 ing a zero mortality and serious injury rate by 2001. 

 The proposed rule explained that this "zero mortality 

 rate goal" will have been achieved when "total 

 incidental mortality and serious injury from fisheries 

 has no biological impact." The Service proposed that 

 the zero mortality rate goal be considered to have 



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