MARINE MAMMAL COMMISSION — Annual Report for 1995 



necessary to install the ATOC sound generator off 

 Haena Point. 



Small-Take Authorizations 



Section 101(a)(5) of the Marine Mammal Protec- 

 tion Act directs the Secretaries of the Interior and 

 Commerce to authorize, in certain instances, the 

 unintentional taking of small numbers of marine 

 mammals by U.S. citizens incidental to activities other 

 than commercial fishing operations. This provision 

 was added to the Act in 1981 to eliminate the need to 

 obtain a waiver of the Act's moratorium on taking 

 marine mammals, which is procedurally more burden- 

 some in those instances when the number of animals 

 likely to be affected is small and the impacts are likely 

 to be negligible. The provision was amended in 1986 

 to allow the taking of small numbers of depleted, as 

 well as non-depleted, marine mammals. All forms of 

 incidental taking, including lethal taking, may be 

 authorized under section 101(a)(5)(A). A new provi- 

 sion, section 101(a)(5)(D), was added by the 1994 

 Marine Mammal Protection Act amendments to 

 provide a streamlined mechanism for authorizing the 

 incidental take of small numbers of marine mammals 

 when only taking by harassment is involved. 



Authorizations under section 101(a)(5)(A) are 

 issued through a two-step process. If the Secretary, 

 through notice-and-comment rulemaking, determines 

 that taking incidental to a specific activity in a specific 

 geographical area will have a negligible impact on the 

 affected species or stock, and will not have an unmiti- 

 gable adverse impact on the availability of the species 

 or stock for taking by Alaska Natives for subsistence 

 use, the Secretary is to prescribe regulations setting 

 forth permissible methods of taking and requirements 

 for monitoring and reporting the take. [See Appendix 

 B, Swartz and Hofman 1991, for an assessment of the 

 reporting and monitoring requirements.] The regula- 

 tions are to be designed so as to ensure that the 

 authorized taking has the least practicable adverse 

 impact on the species or stock and its habitat. Taking 

 authorized by the regulations also must have the least 

 practicable adverse impact on the availability of such 

 species or stocks for subsistence use by Alaska Natives. 



The second step in authorizing small takes under 

 section 101(a)(5)(A) is issuance of a letter of authori- 

 zation. Letters of authorization are issued if the 

 Secretary determines that the type and level of taking 

 likely to result from the proposed activities are 

 consistent with the findings made for the class of 

 activities under the regulations. Letters of authoriza- 

 tion must specify the period of validity and may 

 include additional terms and conditions tailored to the 

 specific request. While the public has an opportunity 

 to comment on small-take regulations, the issuance of 

 individual letters of authorization generally is not 

 subject to prior public review. 



The authorization of incidental harassment under 

 section 101(a)(5)(D) does not require the issuance of 

 regulations for specific activities. Rather, the Secre- 

 tary, within 45 days of receiving an application that 

 makes the required showings, is to publish a proposed 

 authorization for public comment in the Federal 

 Register and in newspapers and appropriate electronic 

 media in the locally affected area. After a 30-day 

 comment period, the Secretary has 45 days in which 

 to make a final determination on the application. 

 Authorizations under section 101(a)(5)(D) may be 

 issued for periods of no more than one year, but may 

 be renewed annually. 



The National Marine Fisheries Service on 31 May 

 1995 published proposed regulations to implement 

 101(a)(5)(D). The Commission expects to comment 

 on those regulations early in 1996. The Fish and 

 Wildlife Service has yet to publish proposed imple- 

 menting regulations. 



Small-take authorizations issued in 1995 are 

 discussed below. 



Dock Reconstruction on MacNeil Island 

 in Puget Sound 



As noted in the Commission's previous annual 

 report, the Washington Department of Corrections 

 applied to the National Marine Fisheries Service on 28 

 August 1994 for authorization to take small numbers 

 of harbor seals by harassment incidental to the demoli- 

 tion and reconstruction of the deteriorating Still 

 Harbor Dock Facility on MacNeil Island in Puget 



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