55 



rial in nature, therefore, this may be a distinction without a difference. We strongly 

 support the requirement that fishermen not be required to go through some form 

 of permitting process for stocks below OSP. The energy and resources of the indus- 

 try and the Federal government should be on resolving problem interactions, not 

 forcing fishermen or groups to engage in a formaUstic permitting process. 



There is also a legislative authorization to incidentally take marine manmials 

 which have been listed as threatened or endangered pursuant to the Endangered 

 Species Act. This authorization is in fact the threshold for determining whether a 

 mammal stock in trouble is to be regulated pursuant to §114 of the MMPA or §7 

 of the ESA. It is the intent of the Negotiators that a mammal stock be regulated 

 under one conservation regime or another, but not both. For animals not yet listed 

 under ESA, the MMPA conservation plan approach embodied in the Proposal would 

 prevail. Once an animal is listed, however, the MMPA conservation plan would 

 cease to exist and human interactions with the animal would be regulated pursuant 

 to the ESA. 



All existing provisions of the ESA would continue to be applicable, with the excep- 

 tion that any conservation and recovery program would be conducted pursuant to 

 § 7 of the ESA (governmental consultation) rather than § 10 of the ESA (individual 

 permitting). This is accomplished by stating in statute that the General Authoriza- 

 tion to incidentally take marine mammals is a federal action sufficient to trigger 

 § 7. The intent of the Negotiators was to eliminate the anamoly whereby the Federal 

 fisheries would otherwise be regulated pursuant to the §7 consultative process, 

 while the state-regulated fisheries would be forced to engage in a more onerous § 10 

 permitting process. The policy basis for treating Federal and State fisheries dif- 

 ferently was lost to the Negotiators. 



A point has been repeatedly raised that the Proposal reduces the existing protec- 

 tions afforded to marine mammals because it currently waives the rigid moratorium 

 on taking depleted species. This is true, however, the approach is reflective of the 



grior action of the Congress in enacting the Interim Exemption in 1988. The interim 

 xemption also waivea the moratorium with respect to the incidental take of marine 

 mammals. It also waived the moratorium with respect to the intentional shooting 

 of marine mammals by commercial fishermen. Prior to Kokechik, the current inter- 

 pretation of the MMPA allowed for the incidental taking of species not yet deter- 

 mined to be at OSP. In other words, the absolute protection for depleted emd de 

 facto depleted (i.e. mammals for which no OSP determination has yet been made) 

 through a rigid moratorium on incidentally taking depleted species was theoretical. 

 The year that it became the law of the land per Kokechik, the Congress enacted the 

 Interim Exemption because the application oi a rigid moratorium was too harsh. 



The Congress should instead review the merits of the Proposal in relation to the 

 conservation program (or lack thereof) set forth under the Interim Exemption. Once 

 this comparison is complete, the Coalition is confident that the only conclusion 

 which can be drawn is that the conservation plan approach is a dramatic improve- 

 ment in the conservation of marine mammal resources in decline, while protecting 

 the legitimate needs of fishermen to continue with their livelihood. 



CLASSIFICATION OF "CRmCAL" AND "NON-CRITICAL STOCKS" 



The Proposal develops a scientific framework for prioritizing the use of Federal 

 resources. The fundamental tenet of the Proposal is that Federal resources should 

 be directed at those mammal stocks of greatest and immediate concern. In order to 

 identify which animals should be addressed first, the Negotiators devised a scientific 

 matrix to classify stocks as "critical" and "non-critical". 



The elements of the Matrix are population size and/or trend in the growth or de- 

 cline of an individual mammal stocks; and the level of total lethal takes being borne 

 by the population. The lethal takes are not limited to only those attributed to the 

 incidental take of marine mammals. The takes include aU mortality directly related 

 to humans. 



Specifically, the Matrix would channel Federal resources toward three situations. 

 The first involves mammal populations in decline or, (if the trend is unknown) have 

 a small population, for which the total lethal take level is determined to be high 

 (referred to as Matrix Class 1 stocks). The second involves mammal populations 

 which are in decline or (if trend is unknown) the population is small, for which the 

 total lethal take level is medium or moderate (Matrix Class 2 stocks). The third in- 

 volves mammal populations which are stable or (if the trend is unknown) are of 

 moderate size, for which lethal take levels are high (also Matrix Class 2). These 

 were generally referred to by the Negotiators as the "hot spot" areas. (Matrix, page 

 8; Response to Critical Stocks, page 13). 



