MARINE MAMMAL COMMISSION — Annual Report for 1992 
dance, and trends in and near the proposed lease sale 
area; (2) obtain the best available information on types 
of prey eaten by sea otters and the distribution and 
abundance of key prey; and (3) determine what, if 
any, measures should be taken to assess and to be 
prepared to minimize and mitigate the possible direct 
and indirect effects of these activities on sea otters. 
The Commission further recommended that the 
Minerals Management Service (1) consult with the 
National Marine Fisheries Service to determine what, 
if any, additional studies are necessary to assess, 
detect, and mitigate the possible effects of the pro- 
posed lease sale on gray, humpback, and killer 
whales, and (2) consult with the National Marine 
Fisheries Service, the Fish and Wildlife Service, and 
the Alaska Department of Fish and Game to identify 
long-term monitoring studies that may be necessary or 
desirable to ensure that oil and gas exploration and 
development do not disadvantage marine mammals. 
Small-Take Exemptions 
Section 101(a)(5) of the Marine Mammal Protec- 
tion Act directs the Secretaries of the Interior and 
Commerce to authorize, upon request, the unintention- 
al taking of small numbers of both depleted and non- 
depleted marine mammals incidental to activities other 
than commercial fishing operations. Before authoriz- 
ing such takes, there must be a notice and opportunity 
for public comment and certain conditions must be 
met. In particular, the Secretary must find that the 
total of such taking will have a negligible impact on 
the affected species or stock, and will not have an 
unmitigable adverse impact on the availability of the 
species or stock for taking by Alaska Natives for sub- 
sistence uses. 
The Secretary also must prescribe regulations 
setting forth permissible methods of taking that will 
cause 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 
stock for subsistence uses. The regulations also must 
set forth the requirements for monitoring and report- 
ing any taking. 
170 
Promulgation of Regulations To Authorize the 
Incidental Take of Marine Mammals 
On 3 October 1989 the National Marine Fisheries 
Service published in the Federal Register a proposed 
rule to authorize the non-lethal take of six species of 
marine mammals (bowhead, gray, and beluga whales 
and bearded, ringed, and spotted seals) incidental to 
oil and gas exploration activities in the Beaufort and 
Chukchi Seas from 1990 to 1995. A similar proposed 
tule governing the incidental take of walruses and 
polar bears was published by the Fish and Wildlife 
Service on 25 February 1991. 
As noted in its previous annual report, the Marine 
Mammal Commission, in consultation with its Com- 
mittee of Scientific Advisors, provided comments to 
the Services on the proposed actions. In its com- 
ments, the Commission noted that it was not clear that 
only “small numbers” of marine mammals would be 
authorized to be taken. The Commission recommend- 
ed that the Services estimate the numbers of each 
species of marine mammal that might be taken and 
explain the basis of the determination that those 
numbers are “small.” The Commission also recom- 
mended that the proposed rules be amended to provide 
the Commission and the public an opportunity to 
review and comment on monitoring plans and other 
aspects of specific requests for incidental take authori- 
zations before letters of authorization are issued. 
A final rule promulgating regulations governing 
small-take exemptions was issued by the National 
Marine Fisheries Service on 18 July 1990. The Fish 
and Wildlife Service published its final rule on 14 
June 1991. In the Commission’s view, neither rule 
adequately identified the monitoring requirements nor 
the criteria needed to judge the adequacy of monitor- 
ing plans submitted as part of requests for letters of 
authorization to take marine mammals incidental to oil 
and gas exploratory activities off Alaska. Likewise, 
neither rule reflected the independent requirements of 
Marine Mammal Protection Act section 101(a)(5) that 
(1) the incidental taking of only small numbers of 
marine mammals may be authorized; and (2) the 
taking may be authorized only if it would have a 
negligible impact on the affected species or stock. 
