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Incidental Mortality During Commercial Fishing
Marine Mammal Stock AssessmentsThe National Marine Fisheries Service (NMFS) in the Department of Commerce and the U.S. Fish and Wildlife Service (FWS) in the Department of the Interior, as appropriate, are required to prepare reports, in consultation with Regional Scientific Review Groups,(7) that describe the status of each marine mammal stock which occurs in waters under the jurisdiction of the United States. These reports include, among other things, the following information: [1] a description of the marine mammal stock and its geographic range; [2] several basic biological parameters of population dynamics; [3] estimates of human-induced mortality, by source; [4] a determination of the status of the stock; and [5] an estimate of a potential biological removal (PBR) level(8) for the affected stock that, if not exceeded, would allow the stock to reach or maintain its optimum sustainable population. During the past five years, while the Federal Government operated under an interim exemption for commercial fisheries, NMFS has collected data on marine mammal stocks and levels of incidental take in commercial fisheries. NMFS's individual stock assessment reports will, as necessary and to the extent possible, be based upon these data. The reports are to be made available for public review and comment and will serve as the basis for Take Reduction Plans for strategic stocks(9) that interact with category I and II fisheries.(10)
Take Reduction Plan
Take Reduction Teams(11) will be established to develop plans to reduce the incidental mortality and serious injury of marine mammals that interact with category I or II fisheries. The short-term goal of the plans is to reduce mortality and serious injury of marine mammals incidental to commercial fishing operations to levels below the affected stock's PBR. The long-term goal of the plans is to reduce the rates of incidental mortality and serious injury of marine mammals to insignificant levels approaching a zero rate.
Authorization To Take Marine Mammals
To be authorized to take marine mammals, each commercial fishing vessel participating in a fishery with frequent or occasional interaction with marine mammals (category I and II fisheries) must be registered with NMFS. The Secretary of Commerce is authorized to revoke an individual fisher's permit to take marine mammals if that fisher fails to comply with a Take Reduction Plan, with reporting requirements, with the requirement to carry an observer when requested, or with emergency regulations. In addition, an individual fisher may be fined for not complying with regulations to protect marine mammal stocks. Fishers are no longer required to report fishing effort nor submit reports for trips in which no marine mammal was killed or injured. However, fishers must report all serious marine mammal injuries or mortalities to NMFS within 48 hours of returning from a fishing trip. NMFS is to develop a standardized, postage-paid, computer-readable form to facilitate reporting by fishers and to speed analysis of the data collected.
Fishers participating in fisheries which have a remote likelihood of killing or seriously injuring marine mammals incidental to their operations (category III fisheries) are not subject to penalty for such taking under the MMPA, provided they report the serious injury or death of any marine mammal within 48 hours of returning from a fishing trip.
On-Board Observer Coverage
All vessels fishing in category I and II fisheries are required to carry on-board observers if requested by the Secretary of Commerce.(12) The Secretary can request the vessel owner's consent for on-board observers to be placed on category III vessels. Under emergency regulatory authority, the Secretary can also require vessels in category III fisheries to carry on-board observers if there is reason to believe that the affected fishery is causing the incidental mortality or serious injury of marine mammals listed as threatened or endangered under the Endangered Species Act (ESA).
Marine Mammal Mortality Goal
The 1994 Amendments prohibit the intentional killing of marine mammals during the course of commercial fishing. In addition, new provisions stipulate that the goal of reducing incidental mortality and serious injury of marine mammals to insignificant levels, approaching a zero rate, is to be reached within 7 years. The Secretary of Commerce has been given explicit regulatory authority to monitor the progress of fisheries and to use the Take Reduction Plan process to ensure the success of achieving that goal.
Emergency Regulatory Authority
When the incidental mortality and serious injury of marine mammals incidental to commercial fishing operations has, or is likely to have, an immediate, significant adverse effect on a stock of marine mammals, the Secretary of Commerce is required to implement emergency regulations to reduce such mortality or injury. The Secretary must also review the current information on the marine mammal stock and take the steps necessary to revise or develop a Take Reduction Plan for that stock.
Consultation with the Secretary of the Interior
The Secretary of Commerce is required to consult with the Secretary of the Interior prior to taking actions or making determinations about the take of marine mammals in commercial fishing operations for which the Secretary of the Interior is responsible.
Protection of Habitat
Although NMFS and the FWS had authority to protect marine mammal habitats under the MMPA prior to the 1994 Amendments and have achieved some progress in protecting marine mammal habitat, MMPA authority for habitat protection was not well defined.(I3) New explicit habitat protection authority is provided by the 1994 Amendments. The 1994 Amendments encourage these agencies to take further measures to protect marine mammal rookeries, mating grounds, and areas of similar ecological significance. To expand knowledge and comprehension of the impacts of habitat destruction on marine mammal species and stocks, Regional Scientific Review Groups, in consultation with the Marine Mammal Commission (MMC), are to be established to advise the NMFS and FWS on actual, expected, or potential impacts of habitat destruction on marine mammal stocks. If habitat destruction is harming a stock defined as strategic, the Regional Scientific Review Group must recommend appropriate conservation or management measures to alleviate the impact. In addition, NMFS and FWS are provided with explicit discretionary authority to develop and implement the conservation or management measures recommended by the Regional Scientific Review Groups or at the initiative of the Secretary if certain findings are made.
Marine Mammals in Captivity
NMFS and FWS will regulate the taking of marine mammals from the wild under the MMPA, while subsequent care and maintenance of captive marine mammals held for purposes of public display at registered or licensed facilities will be regulated by the Animal and Plant Health Inspection Service (APHIS) of the Department of Agriculture under the Animal Welfare Act (Pub.L. 89-544, as amended). For the taking and importing of marine mammals for public display, permits will be issued only when [1] the effect of the take or importation on wild populations is considered, [2] the method of the taking is humane, [3] an institution is registered or licensed under the Animal Welfare Act (AWA), [4] the institution offers an education or conservation program based upon professionally recognized standards of the public display community, and [5] the institution maintains facilities that are open to the public on a regularly scheduled basis. Although NMFS or FWS must be notified at least 15 days prior to the sale, export, or transport of a captive marine mammal, and NMFS and FWS must maintain an inventory of captive individuals, a permit or other authorization is no longer required to obtain, hold captive, transport, transfer, purchase, sell, or export marine mammals that are being held captive for public display purposes when animals move between facilities that meet the permit criteria. In addition, export of marine mammals is prohibited except as explicitly provided for in the Act.
Pinniped-Fishery Interactions
On the Pacific coast, NMFS is to undertake scientific investigations to assess the effects of California sea lions and Pacific harbor seals on endangered and threatened salmonid stocks. In the Gulf of Maine, a pinniped task force is to be established to advise NMFS concerning marine mammal interactions with aquaculture operations. The 1994 Amendments also allow the Secretary of Commerce to authorize the intentional killing of individually identifiable, non-depleted(l4) pinnipeds which can be shown to be having a significant negative effect on the decline or recovery of certain salmonid fish stocks listed as endangered or threatened under the ESA, approaching such status, or that migrate through Ballard Locks at Seattle, WA. Intentional killing can only be authorized after: [1] a Pinniped-Fishery Interaction Task Force has been established by the Secretary to review the situation, consider previous control efforts, and take public comment; and [2] the Task Force has recommended to the Secretary whether to approve or deny the proposed kill along with suggestions for nonlethal alternatives and a recommended course of action.
Ecosystem Health and Stability Assessments
For the first time, NMFS is directed to develop and implement research plans to assess the health and stability of ecosystems of which marine mammals are a part. Specific activities include: (1) a regional workshop for the Gulf of Maine to assess human-caused factors affecting ecosystem health and stability; (2) development of a research plan to monitor the health and stability of the Bering Sea ecosystem; and (3) assessment of the impact California sea lions and Pacific harbor seals have on salmonids and ecosystem stability in the coastal ecosystems of Washington, Oregon, and California.
Cooperative Agreements with Alaska Natives
NMFS and the FWS now have the explicit authority to enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and to provide co-management of subsistence use of Alaska marine mammal stocks by Alaska Natives. Agreements may include grants to Alaska Native organizations for: (1) collecting and analyzing data on marine mammal populations, (2) monitoring the harvest of marine mammals for subsistence use, (3) participating in marine mammal research, and (4) developing marine mammal co-management structures with Federal and State agencies.
Scientific Research
NMFS and FWS are to promulgate regulations authorizing bona fide scientific research involving only Level B harassments without a formal permit. Persons must submit specified information to NMFS or FWS at least 60 days prior to beginning research. Also, expedited scientific research permits will be allowed when delay could cause injury to a marine mammal or loss of unique research opportunities.
Photography
New permit procedures are to explicitly provide for educational and commercial photography of marine mammals.
Polar Bears
The 1994 Amendments establish a new mechanisms for authorizing polar bear trophies (other than internal organs) to be imported from Canada, provided the required findings are made. Subsequently, such imports will not be allowed if there is any indication, found in a study begun two years after the enactment, that the issuance of import permits by the United States is having a significant adverse effect on Canadian polar bear stocks.
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