54 



was either below "optimum sustainable population" ("OSP") or where there had 

 been no OSP determination. Most mammal stocks did not have OSP determinations, 

 and NMFS was unable to make such determinations without years of data collec- 

 tion. The specter of imminent closure of many fisheries nationwide forced the Con- 

 gress to visit the issue of marine mammal/fishery interactions. 



Concurrent with the 1988 legislative process, a group comprised of the fishing in- 

 dustry and the environmental community convened in an effort to negotiate a solu- 

 tion which would allow the fishing industry to continue to operate while making 

 progress on reducing incidental takes in commercial fisheries. An agreement was 

 reached and was adopted by the Congress in its essential form as the MMPA 

 Amendments of 1988, Public Law 100-711. The Amendments were codified as new 

 § 114 of the MMPA. TTie primary focus of the program was to identify the true levels 

 of interaction between commercial fisheries and marine mammal populations, and 

 to highlight problem areas. This took the form of a centralized data gathering sys- 

 tem adnunistered by NMFS. The information used to develop the database came 

 from observer coverage and logbook reports from fishermen. The Kokechik morato- 

 rium on incidental takes was suspended for five years pending the development of 

 this database. Although the Secretary of Commerce was given authority to respond 

 to emergency situations, the Interim Exemption Program was not designed as a 

 management regime to regulate interaction levels. 



The Interim Exemption to the Kokechik moratorium ejcpires on October 1, 1993. 

 The Senate Commerce Committee and House Merchant Marine and Fisheries Com- 

 mittee have indicated a collective intent to develop a permanent conservation and 

 management regime through the reauthorization of § 114 in some form by this date. 



The task of developing a regime to regulate accidental takes in the commercial 

 fishery has proven to be controversial. In response to congressional concerns over 

 the timeframe for action, environmental groups and the fishing conimunitv again 

 convened a negotiating group. This negotiation was professionally facilitated bv the 

 Keystone Center. The negotiators ("Negotiating Group") met on March 15 & 16; 

 April 5 & 6; April 24-27; and May 24 & 26. The negotiations resulted in a com- 

 promise proposal submitted to the Congress and entitled "Conservation and Fishing 

 Conmiunity Final Negotiated Proposal for a Marine Mammal Research and Con- 

 servation Program to be Enacted Through the Marine Mammal Protection Act Reau- 

 thorization of 1993" (the "Proposal"). 



The Gulf of Alaska Coalition categorically supports the Proposal and all of its 

 component parts. The Proposal represents the substantive give-and-take of a diverse 

 group of interests which have dramatically different philosophies on how to nianage 

 marine resources. Forty groups within the conservation and fishing communities are 

 sponsoring the proposal. A number of prominent animal rights groups also actively 

 participated in good faith in the negotiations, but at the end were not able to sup- 

 port the package adopted by the rest of the group. 



The following comments are directed at an overview of the Proposal; attempts to 

 clarify how the program should work in practice if properly administered; and dis- 

 cusses issues wmch appear to be in dispute. The page numbers corresponding to the 

 Proposal which are described are included in parentheses. 



AUTHORIZATION TO INCIDENTALLY LETHALLY TAKE MARINE MAMMALS IN THE COURSE 



OF COMMERCIAL FISHING OPERATIONS 



The Proposal provides a legislative authorization for fishermen to incidentally 

 take marine mammals in the course of commercial fishing operations, when the 

 interactions involve marine mammals which would have fallen under the Kokechik 

 moratorium. For interactions with mammal stocks at OSP, the pre-Kokechik regime 

 applies. (General Authorization, pg. 3). 



Under the legislative authorization, neither individual fishermen nor classes of 

 fishermen are reouired to engage in a permit process to incidentally take marine 

 mammals. Insteaa, the Secretary is given specific regulatory authority over the fish- 

 ing industry to achieve certain statutorily-defined goals (see discussion of critical 

 Stocks below). The legislative authorization does not include the ri^t to inten- 

 tionally kill marine mammals. This approach is modeled after the Interim Exemo- 

 tion, which provided for a general legislative authorization to take marine mammals 

 instead of a permit system. 



One valid criticism of the Proposal has been directed at the different approaches 

 to handling interactions which involve stocks at OSP, as compared to interaction 

 with stocks below OSP. Fishing groups are required to seek an additional general 

 permit or small take permit for interactions with stocks at OSP, but are not re- 

 quired to seek such permits at stocks below OSP. The Gulf Coalition believes that 

 the issuance of general permits or small take permits by NOAA would be ministe- 



