49 



are selected for observation, and what and how catch, effort, and 

 other data are collected," recorded, reported, and analyzed. 



Finally, the Commission believes it would be desirable to 

 clarify, either in the statute or in the accompanying legislative 

 report, the sections of ttie Bill concerning "Penalties and 

 Enforcement" and "Establishment of [a] Pinniped Interaction Task 

 Force." As presently drafted, the section concerning "Penalties 

 and Enforcement" could be interpreted to mean that a fisherman 

 cannot be prosecuted for illegally taking or failing to report 

 taking a marine mammal if it cannot be shown that he or she was 

 aware of, and knowingly violated, the reporting reguirement or 

 regulations regarding taking. Such a situation would make 

 enforcement nearly impossible, and could best be avoided by 

 continuing the vessel registration reguirement, and making it 

 illegal for a vessel to engage in a fishery if it is not properly 

 registered, as presently is the case under the interim exemption 

 program established by the 1988 Marine Mammal Protection Act 

 Amendments. 



The penalties set forth in this section also may be subject 

 to differing interpretations. Subparagraph (1) states, for 

 example, that on the first occasion of non-compliance, the 

 Secretary shall "withdraw all fishing rights and privileges of 

 that person or vessel for*3 consecutive days." It could be 

 interpreted to mean that the person or vessel found guilty of 

 non-compliance will not be allowed to fish during the first 30 

 days after the finding of non-compliance or, alternatively, that 

 the person or vessel founS guilty of non-compliance will be 

 unable to participate for 30 consecutive days in the fishery in 

 which the violation occurred. If the fishery in guestion lasts 

 only a few days or few weeks, the penalty in the first case could 

 be non-punitive in that it could be imposed during a period when 

 the fishery is not operating; in the second case the penalty 

 could be excessively harsh, preventing the person or vessel from 

 participating in the fishery for several years. 



Section 7 of the Bill directs the Secretary, in consultation 

 with the Marine Mammal Commission, to "establish a Pinniped 

 Interaction Task Force to advise the Secretary on management 

 practices regarding pinnipeds interacting in a dangerous or 

 damaging manner with salm6nid fishery resources." It is not 

 clear to the Commission what is meant by "interacting in a 

 dangerous or damaging manner." Further, it is not clear why the 

 Task Force is only to consider interactions with salmonid 

 resources. In addition, It is not clear whether the Secretary 

 would be obligated, in any way, to act or otherwise respond to 

 the advice provided by the Task Force. 



In summary, the Commission believes that the proposed Bill 

 represents a comprise which, in most respects, would establish a 

 regime to govern incidental taking of marine mammals in the 



