8 



Specifically, the group set forth a program to authorize incidental takes of marine 

 mammals dependent on papulation levels. In order to ensure that takes do not ad- 

 versely affect marine mammal stocks, the proposal calls for NMFS to develop and 

 publish a preliminary stock assessment of all marine mammal populations occurring 

 in U.S. waters, using the best available data. The assessments would include mean 

 population estimates, a "Realistic Minimum Population Estimate," an estimate of 

 the annual net productivity rate (if available), estimates of total lethal take for all 

 marine mammal stocks, a list of critical and non-critical stocks, and proposed recov- 

 ery factors for each stock not at OSP. Final assessments would be published after 

 review and comment. 



The group also proposed the establishment of Conservation Teams for all critical 

 stocks. These teams would advise the Secretary of Commerce concerning all con- 

 servation measures needed for critical stocks. The teams' primary purposes would 

 be to review the scientific information for stocks and identify problems and mitiga- 

 tion measures to help critical stocks attain non-critical status. Teams would be 

 charged with reducing lethal takes below the calculated removal level, and reducing 

 incidental fishing mortality to an insignificant rate approaching zero within ten 

 years. Teams would remain in place until a stock is removed from the critical list, 

 meeting at least annually to review progress. 



In the negotiated proposal, intentional lethal taking of marine mammals by fish- 

 ermen would be prohibited. The negotiated proposal, however, contains a process to 

 authorize intentional lethal taking of indiviaually identified, non-depleted pinnipeds 

 by government agencies under special circumstances. 



COMPARISON TO NMFS PROPOSAL 



The most important philosophical and practical difference between the NMFS pro- 



[>osal and the negotiated proposal is witn whom the burden of proof to take action 

 ies. Under the NMFS plan, as with the MMPA prior to the 1988 amendments, no 

 takes are allowed unless the user is able to demonstrate that the take is necessary 

 and will have no adverse impacts on marine mammal stocks. Under the negotiated 

 proposal, all takes would be allowed unless NMFS demonstrates that there will be 

 an adverse impact on a stock. This is an important philosophical distinction and in- 

 volves a major principle underlying the MMPA concerning the protection of marine 

 mammals. Placing the burden on those entities that wish to take marine mammals 

 provides a significantly added measure of protection for marine mammal stocks for 

 which data are uncertain and fiscal and personnel resources are limited. In addi- 

 tion, the proposals differ in their approach to vessel registration and observer re- 

 quirements. 



Aside from this major difierence, the negotiated proposal does not differ greatly 

 from the NMFS proposal. Both proposals recognize the need to focus efforts and re- 

 sources on stocks that are most affected by fishery interactions, and also to consider 

 and evaluate all human related sources of mortality or injury. Both proposals pro- 

 vide for short-term assessments of stock status. However, the negotiated proposal 

 focuses effort only on short-term monitoring of critical stocks, while the NMFS pro- 

 posal provides not only for such monitoring but also for long-term monitoring of all 

 marine mammal stocks to ensure their recovery to, or maintenance within, OSP. 

 Each proposal advocates the development and implementation of management ac- 

 tions and technologies designed to reduce the rates of incidental mortality and in- 

 jury of marine mammals in commercial fishing operations to insignificant levels. Fi- 

 nally, both proposals work within the framework of existing laws, namely the 

 MMPA and ESA, to accomplish these conservation measures with minimal disrup- 

 tion to fishing operations. 



While the negotiated proposal is consistent with and shares the overall vision of 

 the NMFS long-range plan, the two proposals take different approaches to solving 

 many of the problems they cite. For example, the negotiated proposal contains three 

 different processes to authorize the taking of marine mammals incidental to com- 

 mercial fishing: (1) a general permit approach for stocks within OSP; (2) ESA sec- 

 tion 7 consultations for threatened and endangered species of marine mammals; and 

 (3) an undefined authorization process for other stocks to be developed by Conserva- 

 tion Teams. 



This aspect of the negotiated proposal could lead to complex management prob- 

 lems. If a given fishery interacts with more than one stock of marine mammals, as 

 do most, tnen several processes may be recpiired. This could be problematic if, for 

 example, the Conservation Teams for two or more stocks of marine mammals of un- 

 known or depleted status recommended different authorization processes. In addi- 

 tion, if a variety of application/registration processes are allowea, construction of a 

 central data base may oe impossible. The negotiated proposal would rely on existing 



