44 



The Act gives the Secretary of Commerce authority to waive the moratorium, if 

 the best available scientific evidence reveals it would not disadvantage a marine 

 mammal stock to do so. Certain limited exemptions are allowed for ta^es of small 

 numbers of marine mammals for a variety of purposes, including incidental (not in- 

 tended) takes during commercial fishing. 



The National Oceanic and Atmospheric Administration, (NOAA), through an Ad- 

 ministrative Law process, was responsible for determining whether or not a given 

 marine mammal population stock was within its Optimum Sustainable Population 

 (OSP). Only after such a determination could the agency waive the moratorium on 

 takes, and issue regulations permitting incidental taxes of marine manmials. 



Although NMFS issued numerous general permits to domestic fisheries beginning 

 in 1974, and to foreign fisheries operating within U.S. waters beginning in 1977, 

 none of these were, developed through on-the-record rulemaking proceedings. In 

 fact, for most of these permits all parties recognized that NMFS lacked sulficient 

 information on the status of affected populations, take rates, fishingeffort, and 

 other factors necessary to make the determinations required by the MMPA. Indeed, 

 the inability to gather the extent of information necessary for formal rulemaking to 

 waive the moratorium was one reason for the small take exemption enacted in 1981. 



In 1984, the agency had issued eight, five-year general p>ermits to domestic com- 

 mercial fisheries on the West Coast, allowing the annual take of 2,120 Steller's sea 

 lions, 45 North Pacific ftir seals, 1,835 California sea lions, 2,155 harijor seals, 60 

 elephant seals and 200 cetaceans. Two small take letters of exemption also had been 

 issued for East Coast fisheries for a take of small numbers of non-depleted species 

 with a negligible imoact. Both sets of permits were to expire at the end of 1988. 

 In January of 1988, NOAA announced m the Federal Register its intention to pre- 

 pare an Environmental Impact Statement on the proposed reissuance of domestic 

 and foreign general permits. But while NOAA Fisheries were developing the impact 

 statement, it became clear that there was insufficient scientific information, not only 

 to claim that most of the marine mammal population stocks were within their OSP, 

 but also to determine what the impact of commercial fishing takes would be on the 

 stock. Without the OSP determinations, the agency could not make findings re- 

 quired to waive the MMPA moratorium and promulgate regulations authorizing the 

 incidental take of marine mammals. 



At the same time, the U.S. Court of Appeals for the District of Columbia Circuit 

 Court underscored the MMPA's mandate that no incidental take permits could issue 

 without OSP findings. In Kokechik Fishermen's Association v. the Secretary of Com- 

 merce, the court upheld a lower court's ruling that set aside the marine mammal 

 incidental take permit issued to the Japanese salmon driflnet fishery. The lawsuit 

 challenged the permit on the grounds that NMFS allowed the taking of Ball's por- 

 poise, but did not authorize the take of other marine mammals, in particular de- 

 pleted northern fur seals, which were frequently taken incidentally in salmon 

 driftnets. The court declared that NMFS could not issue permits for Dall's porpoise 

 if northern fiir seals (or, for that matter, other marine mammals for which a permit 

 could not be issued) would inevitably be taken. 



NMFS was unable to determine OSP for aflected marine mammal stocks by the 

 end of 1988 and the Kokechik decision uncovered what was inherently flawed about 

 the permit issuing system lack of sufficient information to be certain that incidental 

 takes would not harm marine mammal stocks. This situation brought together rep- 

 resentatives of the environmental community and the fishing industry during the 

 spring and summer of 1988 to find a way to enable fishermen to go fishing, yet min- 

 imize the harmful impact of that activity on marine mammals. They hammered out 

 a series of points that they presented jointly to the Senate Commerce Committee 

 and the House Merchant Marine and Fisheries Committee. In November, Congress 

 passed the MMPA Amendments of 1988 establishing an information gathering pro- 

 gram and an Interim Exemption Program for Commercial Fisheries. 



1. It Is Time to Replace the Interim Exemption With a Program That Reduces Inci- 

 dental Take of Marine Mammals 

 The 1988 amendments to the MMPA included a five-year program exempting 

 commercial fisheries from the taking prohibitions of the Act. This limited exemption 

 allows incidental takes of marine mammals in fishing gear ranging from coastal 

 gillnets in New England to massive trawls in the Bering Sea — interactions between 

 38 different fisheries (except those in the eastern tropical Pacific yellowfin tuna 

 purse seine fishery) and 40 species of marine mammals. The exemption was de- 

 signed to allow commercial fishing to continue while NMFS stepped up its data 

 gathering, observations, and research on marine mammal/fishing interactions. The 

 objective of the Interim Exemption Program was to provide time to collect reliable 

 information about marine mammal and commercial fishing interactions and to com- 



