MARINE MAMMAL COMMISSION — Annual Report for 1992 
In May 1987 the Department of Commerce issued 
a general permit to the Federation of Japan Salmon 
Fisheries Cooperative Association authorizing the take 
of Dall’s porpoises (Phocoenoides dalli) in the Japa- 
nese North Pacific salmon driftnet fishery. The 
permit was challenged in a lawsuit filed by the Kok- 
echik Fishermen’s Association, representing Alaska 
subsistence fishermen, and several environmental 
groups. As a result of Kokechik Fishermen’s Associa- 
tion v. Secretary of Commerce, the permit was ruled 
invalid. The court found that issuing the single- 
species permit violated the Marine Mammal Protection 
Act because other species for which a permit could 
not be issued (e.g., northern fur seals) would inevita- 
bly be caught if the Japanese were allowed to fish as 
authorized by the permit. 
The court’s decision overturned a longstanding 
National Marine Fisheries Service interpretation of the 
Marine Mammal Protection Act permit provisions and 
cast serious doubt on the Service’s ability to issue 
incidental-take permits for other fisheries, including 
several domestic fisheries whose permits were to 
expire at the end of 1988. For some fisheries, there 
was insufficient information to determine which 
marine mammal species were likely to be taken 
incidentally. In other cases it appeared likely that 
there were insufficient data to make the required 
showing that affected marine mammal species and 
population stocks were within their optimum sustain- 
able population range and would not be disadvantaged 
(i.e., be reduced below their maximum net productivi- 
ty level) as a result of the incidental taking. In 
addition, small numbers of depleted species for which 
incidental-take permits could not be issued were 
known to be taken incidental to some fisheries. 
1988 Amendments to the 
Marine Mammal Protection Act 
In response to uncertainties raised by the Kokechik 
decision, representatives of the fishing industry and 
environmental community jointly proposed that 
Congress exempt U.S. fishermen from the general 
permit and “small-take” provisions of the Marine 
Mammal Protection Act for three years to allow the 
take of marine mammals incidental to certain commer- 
cial fisheries while gathering information needed to 
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make the required determinations. Based largely on 
that proposal, the Marine Mammal Protection Act was 
amended in 1988 to provide a limited five-year 
exemption from the Act’s taking prohibition for most 
commercial fisheries. During the exemption period, 
which runs until 1 October 1993, the general permit 
and small-take provisions of the Act do not apply. 
Rather, incidental taking is authorized and regulated 
in accordance with the exemption provisions of new 
section 114. Foreign fisheries not regulated under the 
Magnuson Fishery Conservation and Management 
Act, such as the Japanese high seas salmon fishery at 
issue in the Kokechik case, are not included in the 
exemption. An exception was also made for the 
yellowfin tuna purse seine fishery, which continues to 
operate under a general permit issued to the American 
Tunaboat Association in 1980. The purpose of the 
exemption program is to enable commercial fisheries 
to continue to operate while information essential for 
long-term management of marine mammal-fisheries 
interactions is gathered. 
Under the exemption provisions, owners of vessels 
operating in fisheries identified by the National 
Marine Fisheries Service as frequently or occasionally 
taking marine mammals must register with the Service 
and obtain an exemption certificate. Vessel owners, 
masters, and crew members are not subject to penal- 
ties under the Marine Mammal Protection Act for the 
incidental take of marine mammals, except for the 
take of California sea otters or the intentional lethal 
take of cetaceans or marine mammals from depleted 
populations, if the owners maintain a current exemp- 
tion. Unauthorized taking of endangered or threat- 
ened marine mammals continues to be a violation of 
the Endangered Species Act. In addition, if the 
incidental taking is having an immediate and signifi- 
cant adverse impact on a marine mammal stock or if 
more than 1,350 Steller sea lions or 50 northern fur 
seals will be killed during a calendar year, the Ser- 
vice, in consultation with the appropriate regional fis- 
hery management councils and state agencies, must 
prescribe emergency regulations to prevent, to the 
extent practicable, any further taking. 
In order for an exemption to remain valid, the 
vessel Owner must submit a report detailing any 
instances of incidental taking and providing other 
information prescribed by the National Marine Fisher- 
