14 



pleted species and stocks when the taking would not disadvantage them — i.e., cause 

 the stocks to be reduced below their optimum sustainable popmation level. It also 

 was recognized that, at least in some cases, incidental take might be avoided or re- 

 duced by altering fishing gear or practices. Thus, one of the goals of the Act is to 

 reduce the incidental kill and serious injury of marine manunals permitted in the 

 course of commercial fishing operations to as near zero as practicable. 



During Marine Mammal Protection Act reauthorization hearings held in 1981, 

 representatives of the U.S. fishing industry noted that many fisheries caught only 

 small, biologically insignificant numbers of marine mammals and that it was bur- 

 densome to require fishermen involved in those fisheries to go through the same 

 permitting procedures necessary to ensure that fisheries taking large numbers of 

 marine mammals do not disadvantage the affected species or population stock. This 

 made sense and the Act was amended in '1981 to allow the Secretaries to authorize 

 the unintentional taking of small numbers of non-depleted marine mammals inci- 

 dental to commercial fisning operations when, after notice and opportunity for pub- 

 lic comment, the Secretary finds that the total of such t^ing would have a neg- 

 ligible impact on the affected species or population stock, and provides guidelines 

 for establishment, by the involved fishermen, of a cooperative system for monitoring 

 the taking. 



Subsequently, a number of studies were undertaken to assess and monitor the 

 species and numbers of marine mammals being taken incidentally in both U.S. fish- 

 eries and fisheries in other parts of the world (e.g., in the laree-scale, high seas 

 driftnet fisheries in the North Pacific). These studies indicated that incidental take 

 was more common than had previously been thought and that, in some cases, the 

 number of animals being taken was much greater tnan thought. For example, stud- 

 ies done in the early and mid-1980s indicated that there was a substantial inciden- 

 tal take of harbor porpoise in gill net fisheries in both California and New England. 



In 1987, a permit issued by the Department of Commerce to the Federation of 

 Japan Salmon Fisheries Cooperative Association authorizing the incidental take of 

 Dall's porpoise in the Japanese North Pacific salmon driflnet fishery was challenged 

 successfully in a lawsuit filed by the Kokechik's Fisherman's Association, represent- 

 ing Alaska subsistence fishermen, and several environmental groups. The court 

 found that issuing the single-species permit violated the Marine ^fammal Protection 

 Act because other species for which a permit could not be issued (e.g., northern fur 

 seals) would inevitably be caught if the Japanese were allowed to fish as authorized 

 by the permit. 



The court's decision overturned a long-standing National Marine Fisheries Serv- 

 ice' interpretation of the Marine Mammal Protection Act's permit provisions and 

 cast serious doubt on the Service's ability to issue incidental take permits for other 

 fisheries, including several domestic fisheries whose permits were to expire at the 

 end of 1988. For some fisheries, there was insufficient information to determine 

 what sp>ecies of marine mammals were likely to be taken incidentally. In other 

 cases, it appeared that there were insufiicient data to make the required determina- 

 tion that the affected marine mammal species and population stocks were within 

 their optimum sustainable population range and would not be disadvantaged as a 

 result of the incidental taking. In addition, small numbers of depleted species for 

 which incidental take permits could not be issued were known to oe taken inciden- 

 tally in some fisheries. 



In response to the uncertainties raised by the Kokechik decision and the growing 

 recognition that incidental take levels were greater in some fisheries than pre- 

 viously thought, representatives of the' U.S. fishing industry and environmental 

 community jointly proposed in 1988 that Congress exempt U.S. fishermen from the 

 general permit ana "small take" provisions oT the Marine Mammal Protection Act 

 for a period of three years while gathering information needed to make the required 

 determinations. In response. Congress amended the Marine Mammal Protection Act 

 in 1988 to exempt most U.S. commercial fisheries from the general permit and 

 "small take" provisions of the Act for a period of five years. The three-year exemp- 

 tion period proposed by the fisheries and environmental groups was increased to 

 five years to provide more time to gather and evaluate necessary information. 



The 1988 amendments directed that the National Marine Fisheries Service clas- 

 sify all U.S. fisheries according to the frequency that they take marine mammals. 

 They required that owners of vessels engaged in fisheries that take marine mam- 

 mals more than rarely must register with the Service and obtain an exemption cer- 

 tificate. They also required that vessel owners report incidental taking and provide 

 such other information as determined necessary oy the National Marine Fisheries 

 Service to reliably determine the nature and extent of the incidental take problem. 

 In addition, the amendments required that the Service develop an observer program 

 to verify the reliability of the data reported by fishermen. 



