July 16, 2003
Oceans, Fisheries, and Coast Guard Subcommittee hearing scheduled for Wednesday, July 16, at 9:30 a.m. in room 428 of the Russell Senate Office Building. The Members will hear testimony regarding a broad range of views on the current state of marine mammals and the issues surrounding reauthorization of the MMPA. Senator Snowe will preside. Following is a tentative witness list (not necessarily in order of appearance):
Mr. David Cottingham
Thank you for providing the opportunity for the Marine Mammal Commission to share its views with the Committee regarding reauthorization of the Marine Mammal Protection Act. We recently observed the Act’s 30th anniversary and took that opportunity to reflect on the statute’s successes and the challenges that remain. Under the Marine Mammal Protection Act much has improved. Many marine mammal populations have grown significantly since passage of the Act, including some stocks of large whales that had been threatened by commercial whaling. Observed dolphin mortality associated with the eastern tropical Pacific tuna fishery has been reduced from hundreds of thousands per year to less that 2,000. Nevertheless, the depleted dolphin stocks used to locate schools of large tuna do not appear to be recovering as one would expect. Other species and stocks, such as northern right whales and Hawaiian monk seals remain critically endangered. New threats to marine mammals are emerging, such as retreating ice coverage in polar areas, which is having adverse effects on habitats used by Arctic species such as the polar bear. Other possible threats require further study, such as noise in the marine environment, that may be disrupting or interfering with vital marine mammal behaviors. The Commission is in the process of planning a series of international workshops on the effects of ocean noise to identify information gaps and the actions needed to help us better understand the nature and extent of the possible impacts and to identify needed management actions. In previous testimony concerning the Marine Mammal Protection Act, , the Commission's Chairman has observed that most research and conservation actions involving marine mammals are taken in response to acute, often controversial conservation problems. Current legislation largely reflects this reactive approach to management. As we focus on past and emerging crises we may miss opportunities to develop a more broad-based, interdisciplinary, and anticipatory approach to research and management that could enable us to identify and act to address potential conservation problems before they become serious and controversial. Along these lines, the Commission is convening a meeting of international marine mammal experts this summer to identify comprehensive research needs and to map out a long-term strategy for pursuing such projects. I would be happy to discuss these and other efforts being carried out by the Commission in furtherance of its responsibilities under the Marine Mammal Protection Act during this hearing as time permits or at another time at the Members’ convenience. I now turn to the immediate task at hand, providing you with our recommendations concerning reauthorization of the Act. The Marine Mammal Protection Act was last reauthorized in 1994, at which time Congress enacted significant amendments to the statute. While those amendments, for the most part, have improved operation of the Act, ten years of experience with implementing those provisions have uncovered certain problems that we and the other agencies charged with implementing the Act believe merit the Committee’s attention during reauthorization. In large part, the recommended amendments included in the Administration’s bill were developed to address those shortcomings. The Commission participated on an inter-agency working group to develop the Administration’s proposal. Passage of the bill that we and the other agencies testifying before you today have developed will lead to more effective conservation of marine mammals. Although other, technical amendments have been proposed, the key issues addressed in the Administration bill are summarized below. The 1994 amendments added section 119 to the Act to encourage the National Marine Fisheries Service and the Fish and Wildlife Service to enter into cooperative agreements with Alaska Native organizations to conserve marine mammals, to provide co-management of subsistence use, and to authorize funding for activities under those agreements. The process has worked well, and cooperative agreements are in place with a number of Alaska Native organizations. The key shortcoming with the existing provision is that it does not provide a mechanism for true harvest management under which the parties can establish enforceable limits on the numbers of marine mammals that may be taken for subsistence and handicraft purposes or on the time and manner of taking. Having such authority would have allowed the resource agencies and Native leaders to implement responsible harvest management measures to stave off situations such as that that led to depletion of the Cook Inlet stock of beluga whales. As it was, the National Marine Fisheries Service and the majority of Native hunters had little recourse but to watch as a small group of hunters seeking financial gain overharvested the stock to the point of depletion. It was only after the Service designated the stock as depleted that it was able to establish mandatory limits on further taking by Alaska Natives. By that point, however, the population had been reduced to such low numbers that draconian measures were needed to bring about recovery of the stock – restrictions that could have been avoided if effective management could have been implemented earlier. The Administration bill includes a proposal, worked out cooperatively with Alaska Native representatives, that would cure this statutory deficiency and minimize the risk that similar situations will arise in the future. The permit provisions of the Act were significantly revised in 1994. The package of permit-related amendments enacted at that time added a new, generally applicable prohibition to the Act – a prohibition on exporting marine mammals. Being focused on permits, however, the amendments neglected to provide exceptions to authorize marine mammals, and marine mammal parts and products, to be exported in all cases where such exports previously had been allowed. In fact, the only exceptions included in the 1994 amendments pertained to exports for purposes of public display, scientific research, and species enhancement. Exceptions authorizing exports in other situations are needed, including for handicrafts made and sold by Alaska Natives, as part of cultural exchanges among Alaska Natives and Natives from other Arctic countries, under waivers of the moratorium, etc. The Administration bill takes a comprehensive approach to this problem by including specific authority not only for exports, but related transport, purchases, and sales. Although transfers of marine mammals currently are authorized for purposes of public display, scientific research, and enhancement to foreign facilities that meet requirements comparable to those applicable to U.S. facilities, no mechanism is in place for issuing permits to authorize a foreign applicant to take and export marine mammals directly. That is, sections 101(a)(1) and 104(a) of the Act refer only to permits authorizing the taking or importing of marine mammals, but not exports. The amendments set forth in the Administration bill would clarify that such permits can be issued to qualified applicants. We understand that some representatives of the public display community are concerned that the Administration bill would require facilities to obtain permits for exports where one is not required now. A close examination of the proposed amendments will reveal that this is not the case. Transfers from domestic facilities to foreign facilities that meet the Act’s comparability requirements would still be allowed without a permit. However, under the Administration’s proposal, issuance of an export permit in to a foreign applicant in the first instance would become an available option. That is, the proposed authority for issuing export permits would supplement, but not roll-back, the 1994 permit amendments. One other problem created by the 1994 amendments related to exports pertains to the prohibition section of the Act. As originally enacted in 1972, the prohibition on transporting, purchasing, and selling marine mammals applied only if the animal had been taken in violation of the Act. Recognizing that this created untenable enforcement problems – for example, when the animal was originally taken for a permissible purpose, e.g., Native subsistence, but later transferred for an impermissible purpose – Congress amended the provision in 1981 to remove the linkage between the underlying taking and the subsequent, unauthorized act. For unexplained reasons, and perhaps inadvertently, when the export prohibition was added to section 102(a)(4) in 1994, the drafters reverted to the pre-1981 language. This has resurrected the enforcement difficulty that Congress recognized and originally fixed more than two decades ago. A similar amendment to fix the problem anew is needed now. Another key aspect of the 1994 permit amendments was clarifying that exclusive jurisdiction for most aspects of the maintenance of marine mammals in captivity rests with the Animal and Plant Health Inspection Service under the Animal Welfare Act. One result of this shift in agency jurisdiction was the nullification of a longstanding National Marine Fisheries Service policy against authorizing traveling cetacean exhibits. Although the Animal and Plant Health Inspection Service has recognized that such exhibits pose heightened risks to the animals involved, it does not believe that it has sufficient authority to prohibit them by regulation. Because of this, and the undue risks posed to dolphins and other cetaceans in transient facilities, the Commission and other agencies recommend that these exhibits be expressly precluded by statute. Another issue concerning captive marine mammals that merits Congressional attention is the release of long-term captive marine mammals. The release of these animals poses risks both to the animals being released and to the wild populations with which they come into contact. As such, releases should only be attempted when there has been sufficient training and health screening of the animals to be released and when an adequate monitoring program is in place. While releases arguably constitute harassment under the current definition of that term, there is a need for certainty that releases are prohibited absent specific authorization. In his regard, we note that the Administration’s proposed release amendment would not apply to the return of stranded/rehabilitated animals or to temporary releases undertaken as part of the training or deployment of marine mammals as part of the Navy’s marine mammal program. The centerpiece of the 1994 amendments was the adoption of a new regime to govern the incidental take of marine mammals by commercial fisheries. By focusing on whether or not the catch is sold, however, the amendments created a situation where certain “recreational” fishermen, who fish in the same areas as commercial fishermen, use identical or similar gear, and target the same species, are not covered under the regime simply because they choose to keep the fish for their own use. The Administration proposal would address this incongruity by expanding the current regime to include not only commercial fisheries, but recreational fisheries that take marine mammals frequently or occasionally (category I or II fisheries). In this way, these fishermen would be covered under the section 118 taking authorization and would be accountable for implementing take reduction measures and for meeting the reporting and other requirements applicable to their commercial counterparts. The Administration bill also includes proposed amendments to section 118 designed to improve the operation of the take reduction process. Another important change to the Marine Mammal Protection Act enacted in 1994 was the addition of a statutory definition of the term “harassment.” That amendment was intended to bring greater certainty to determining what would and would not constitute a taking by harassment. However, that amendment has not had the desired result. Some argue that the definition is too narrow in that it requires an underlying “act of pursuit, torment, or annoyance” to constitute harassment. Others observe that the definition is too broad in that it arguably includes acts with any potential to disturb a marine mammal. The Administration proposal would address both of these concerns. First, it would expand the definition to clarify that it includes any act that has, or can be reasonably be expected to have, certain impacts. Second, the proposed definition would raise the threshold for Level B harassment to the point where disturbance would have to occur or be likely to occur. In addition, the Administration proposal contains a new subpart that would address activities directed at marine mammals (e.g., intentional pursuit or close approaches) that are likely to cause disturbance, regardless of whether the response is significant or not. There are also provisions of the Act apart from those amended in 1994 that need to be revisited during the reauthorization process. For instance, certain provisions have not been updated to reflect changed circumstances since they were originally enacted 30 years ago. Foremost among these are the penalties and fines available under the Act, which have not been increased since originally enacted in 1972. The Administration proposal would bring the Marine Mammal Protection Act penalty provisions into parity with those under other natural resource statutes and reflect changed economic circumstances since the early 1970s. Likewise we advocate updating a spending limit peculiar to the Marine Mammal Commission. Section 206(4) of the Act authorizes the Commission to secure the services of experts or consultants, but limits the amount that can be spent to $100 per day. That limit essentially precludes us from obtaining these types of services in today’s economy. To address this problem, the Administration bill would eliminate the $100 limit and put the Commission on an equal footing with other Federal agencies when it comes to procuring such services. The Marine Mammal Commission also believes that there is a need to improve enforcement efforts under the Marine Mammal Protection Act. In this regard, the administration proposal would tighten the harassment definition to make cases based on directed taking easier to prove. The Administration bill would also allow the National Oceanic and Atmospheric Administration to retain fines collected for violations of the Act, which could be used to offset enforcement expenses. This is something that the Fish and Wildlife Service is currently authorized to do. In addition, the Administration bill would direct the National Marine Fisheries Service and the Fish and Wildlife Service to pursue cooperative agreements with State law enforcement agencies to improve local enforcement efforts under the Marine Mammal Protection Act. Another major challenge under the Marine Mammal Protection Act reflected in the Administration bill is securing the recovery of highly endangered species, such as the northern right whale. The North Atlantic stock, which numbers about 300 individuals, remains vulnerable to extinction due, in part, to ship strikes and entanglement. The Administration bill highlights the ship strike issue as one requiring priority attention. One of the difficulties impeding progress in addressing this source of mortality is a lack of agreement concerning the existing legal authorities that can be brought to bear on the issue. In this regard, the Marine Mammal Commission has just entered into a contract for an independent assessment of what can be done under current legislation and existing international agreements to address this problem. That concludes my testimony. I would be please to respond to any questions that you may have.
Dr. Rebecca Lent
Madame Chair and Members of the Subcommittee, I am Dr. Rebecca Lent, Deputy Assistant Administrator for Fisheries at the National Oceanic and Atmospheric Administration (NOAA). Thank you for inviting me to testify today on the reauthorization of the Marine Mammal Protection Act (MMPA). NOAA Fisheries administers the MMPA, the principal Federal legislation that guides marine mammal protection and conservation policy in U.S. waters, in conjunction with the U.S. Fish and Wildlife Service (FWS). The MMPA provides NOAA with conservation and management responsibility for more than 140 stocks of whales, dolphins, porpoises, seals, and sea lions. The Department of Commerce and NOAA have worked closely over the past three years with the Department of the Interior, Department of Defense, Marine Mammal Commission, and others to develop a sound Administration proposal to reauthorize the MMPA. In February 2003, we transmitted this Administration bill to Congress and I will focus my testimony today on various elements of that bill. Specifically, I will discuss improvements the bill makes to the definition of harassment, marine mammal bycatch reduction efforts, enforcement, and other important aspects of marine mammal conservation and management policy. The Administration’s MMPA Reauthorization Bill Definition of Harassment The definition of harassment, a critical component of the "take" prohibition, which is also defined in the Act, has broad applicability throughout the MMPA. The current definition in the MMPA separates harassment into two levels. Level A harassment is defined as, "any act of pursuit, torment, or annoyance which has the potential to injure a marine mammal or marine mammal stock in the wild." Level B harassment is defined as, "any act of pursuit, torment, or annoyance which has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering." NOAA has experienced difficulties with interpretation, implementation, and enforcement of the current MMPA harassment definition. First, the definition is limited to acts involving “pursuit, torment, or annoyance.” Second, the definition is overly broad and does not provide a clear enough threshold for what activities do or do not constitute harassment. Third, the definition does not provide an adequate mechanism to address activities intentionally directed at individual or groups of marine mammals that disturb the animals. The Administration’s MMPA reauthorization bill proposes revisions to the current definition that would address each of these concerns. Inappropriate Two-Tiered Standard: The current definition of harassment impedes NOAA’s ability to adequately enforce the MMPA’s take provisions. As the definition is currently written, only those acts involving "pursuit, torment, or annoyance," terms that are undefined in the MMPA, can be addressed. Second, the agency must prove that the act has the potential either to injure or disturb a marine mammal. Thus, the current definition contains a difficult two-tiered standard that the agency must meet before it can prosecute anyone who takes a marine mammal by harassment. Amendments to the harassment definition in the Administration’s MMPA bill will eliminate the phrase “pursuit, torment, or annoyance.” Overly Broad: The current definition of harassment is both broad and ambiguous and, therefore, it fails to create a clear threshold for acts that do and do not constitute harassment. As a result, it is difficult for the agency to prioritize its resources to deal with the types of harassment that have the most negative effects on marine mammals. We are also concerned that the existing definition could result in unnecessary administrative burdens on the regulated community. One could argue, for instance, that any activity has the potential to disturb a marine mammal by causing disruption of behavioral patterns, from humans walking along a pier near a group of sea lions causing them to stop feeding and raise their heads, to driving a ship that causes a wake that dolphins choose to swim in. As interpreted by some courts, the current definition does not distinguish biologically significant, harmful events from activities that result in de minimis impacts on marine mammals. The lack of a clear threshold for harassment in the definition blurs the distinction between those activities that cause insignificant impacts and those that cause truly harmful impacts to marine mammals. This has negative consequences on marine mammals, NOAA, and the regulated community. First, activities that result in meaningful biological disturbance to marine mammals do not receive the degree of attention that they warrant. Second, NOAA Fisheries must devote resources to addressing activities and issues that result in biologically insignificant impacts on marine mammals. Third, the lack of clarity in the definition imposes unnecessary regulatory burdens on the regulated community, who are forced to apply for authorizations for often harmless activities to prevent potential legal consequences. The Administration’s MMPA bill clarifies the definition of harassment to focus the agency and the regulated community on types of harassment that result in meaningful biological disturbance to marine mammals, rather than those acts that are not likely to have biologically significant impacts on marine mammals. Lack of Emphasis on Directed Impacts: The third tier of the harassment definition contained in the Administration’s MMPA bill makes it explicit that activities that are likely to disturb marine mammals that are directed at individual or groups of marine mammals, such as closely approaching, touching, or swimming with dolphins in the wild, are considered harassment. Members of the public and commercial operators who intentionally interact with wild marine mammals either by boat, in the water, or on land disturb the natural behavior of the animals. They also do a great disservice to these animals over time by habituating them to humans and vessels. In addition, humans who attempt to closely approach, chase, swim with, or touch wild marine mammals place themselves at risk since wild animals are unpredictable and can inflict serious injury if threatened or afraid. Overall, NOAA feels the proposed definition of harassment contained the Administration’s MMPA bill will apply a clearer standard of harassment to the entire regulatory community and result in more meaningful protections for marine mammals. Additionally, the proposed definition conceptually mirrors recommendations by the National Research Council (NRC) for regulations that are based on the potential for a biologically significant impact on marine mammals. In 2000, NRC pointed out flaws in the current definition of harassment, contending that since science is improving in terms of its ability to distinguish between activities that have significant negative effects and those that have insignificant effects on marine mammals, the harassment definition should be amended to reflect this. The harassment definition contained in the Administration’s MMPA bill will achieve this goal of focusing on activities that will result or could result in significant biological impacts on marine mammals. Marine Mammal Bycatch Reduction Initiatives The incidental take of marine mammals in the course of fishing operations continues to be a large source of marine mammal mortality and serious injury. The 1994 amendments to the MMPA outlined an effective approach to monitoring and addressing the incidental take of marine mammals by commercial fisheries. The Administration bill contains several amendments to strengthen these provisions and marine mammal bycatch reduction efforts generally. First, the bill proposes to expand the MMPA's Section 118 marine mammal bycatch reduction requirements to non-commercial fisheries that have frequent or occasional takes of marine mammals. Non-commercial fisheries, including recreational fisheries, often use identical gear to commercial fishing gear and deploy it in the same manner as commercial fishermen. Nonetheless, the MMPA currently only authorizes the agency to place observers and use the take reduction process outlined in Section 118 of the Act to monitor and address marine mammal bycatch resulting from commercial fisheries. The Administration bill amends Section 118 to enable NOAA Fisheries to monitor and address all important fishery-related sources of marine mammal bycatch. In addition, by including non-commercial fisheries under this regime, the Administration bill would provide a simpler mechanism than currently exists under the law to offer non-commercial fishermen that take marine mammals protection from prosecution for incidental takes. Second, the Administration bill aims to improve information on marine mammal bycatch by directing the agency to explore new technologies to provide statistically reliable data on marine mammal bycatch levels. This is important due to the fact that observer programs are expensive and not always feasible. Third, the Administration bill directs the Secretary of Commerce, acting through NOAA Fisheries, to create opportunities, such as mini-grant programs, to encourage development of fishing gears and methods that reduce marine mammal bycatch. The development of new gear and gear deployment technologies has already proven effective at reducing incidental takes. For example, the development of acoustic deterrent devices, called "pingers," has helped reduce incidental takes of harbor porpoises in New England waters. Fourth, in the spirit of advancing fishing gear innovation, the Administration bill requires NOAA Fisheries to include technical liaisons with expertise in commercial fishing practices as members of take reduction teams (TRTs). These liaisons will work with TRT members on the latest advancements in gear technology that reduce marine mammal bycatch. Enhancing Enforcement While several sections of the MMPA have been updated since the Act was first passed in 1972, some areas are extremely outdated. One such area is the penalties that may be imposed for violations of the MMPA. Currently, individuals who violate the MMPA are subject to civil penalties of up to $10,000 and criminal fines of up to $20,000. These penalties have remained unchanged since 1972. While these levels may be appropriate in some instances, they have proven grossly inadequate in others, undermining effective enforcement of the Act. To enhance enforcement of the Act, the Administration bill would authorize the Secretary to impose a civil penalty of up to $50,000 for each violation. Fines of up to $100,000 for each criminal violation would also be available in suitable cases. The Administration bill would also aid enforcement efforts by explicitly stating that individuals who interfere with on-board investigations by enforcement agents or submit false information are in violation of the MMPA. Ship Strikes Ship strikes continue to be a leading source of mortality of the critically endangered North Atlantic right whale and other large whales. Between 1970 and 2000, there were 48 known right whale mortalities, of which 16 were due to ship strikes. The Administration bill would authorize the Secretary to use the various authorities available under the MMPA to reduce the occurrence of ship strikes of whales and to encourage the development of methods to avoid ship strikes. Stranding and Entanglement Response NOAA Fisheries scientists must often respond immediately to marine mammal stranding and entanglement events to attempt to rescue and rehabilitate animals in jeopardy. These events provide NOAA Fisheries opportunities to save individual animals, as well as conduct close-up research on animal behavior, biology, and physiology. The MMPA currently provides for a comprehensive program to address stranded marine mammals, but does not specifically give NOAA Fisheries the authority to address marine mammals that have become victims of entanglement in fishing gear or other materials. The Administration bill would add a definition of entanglement to the Act and would require NOAA Fisheries to collect information on rescue and rehabilitation of entangled marine mammals in addition to stranded animals. The bill would also specifically enable the Secretary to enter into agreements with individuals to respond to entangled marine mammals in addition to stranded marine mammals. Harvest Management Agreements The 1994 MMPA amendments gave NOAA Fisheries and the FWS authority to enter into cooperative agreements with Alaska Native organizations to conserve marine mammals and co-manage subsistence use by Alaska Natives. These amendments provided a great beginning and the program has yielded some successes, evidenced by the agreements that we have reached to co-manage subsistence harvest of harbor seals, beluga whales, and other marine mammals. Nonetheless, the effectiveness of these agreements at this point relies on voluntary compliance by Alaska Natives, since there is no mechanism under the MMPA to enforce any restrictions developed through harvest management agreements for subsistence purposes. Additionally, the other provisions of the Act enable effective regulation of subsistence harvest only after designation of a marine mammal stock as depleted. The Administration bill would authorize co-management partners to develop a management plan through which cooperative agreements could be enforced. Thus, it would enable the parties to effectively manage subsistence harvest prior to a depletion finding and ensure the greatest conservation benefit to the marine mammal stock. Release of Captive Marine Mammals The release of long-captive marine mammals without proper preparation and a sound scientific protocol is regarded by the scientific community as potentially harmful to both the animals released, as well as the wild populations they encounter. Fundamental questions remain as to the ability of marine mammals that have been held in captivity for extended periods to forage successfully, avoid predators, and integrate with wild populations. Unauthorized releases pose serious risks of disease transmission, inappropriate genetic exchanges, and disruption of critical behavioral patterns and social structures in wild populations. The Administration bill would explicitly prohibit the release of captive marine mammals without prior authorization, with limited exceptions. Traveling Exhibits We remain concerned about the risks posed to cetaceans by traveling exhibits. Unlike some marine mammals, such as seals and sea lions, which spend time in both aquatic and terrestrial environments, cetaceans must remain buoyant at all times. Therefore, their health and survival depends heavily on having a continuously clean and safe aquatic environment, conditions that are difficult to maintain when transport is frequent. Because transporting cetaceans is difficult and risky, traveling exhibits would place these animals under enormous stress. The Administration bill would reinstate the ban on traveling exhibits for cetaceans, originally instituted in the mid-1970s. Export Provisions As part of a package of permit-related amendments, the 1994 MMPA amendments added a prohibition on exporting marine mammals. However, the language of this prohibition has created some difficulties in enforcement and inconsistencies with other provisions of the MMPA, especially provisions related to permits. Therefore, the Administration bill would revise the export prohibition to address enforcement difficulties and provide comprehensive clarification of circumstances in which not only the taking and import, but also the transport, purchase, sale, and export, of marine mammals is authorized. Conclusion The MMPA has served as a sound model for marine mammal conservation and management policies and practices around the world. Reauthorization of the MMPA provides the opportunity to further strengthen the conservation and recovery of marine mammals. I look forward to working with Members of the Subcommittee, your staffs, and other interested members of the public to meet the challenges that face us in better protecting marine mammals, while balancing human needs throughout the reauthorization process. This concludes my testimony. Thank you again for the opportunity to testify before your Subcommittee today. I would be happy to answer any questions you may have on the Administration's MMPA reauthorization bill or any other related matters.
Vice Admiral Charles W. Moore
Mr. Marshall P. Jones, Jr.
Madam Chair and Members of the Subcommittee, thank you for the opportunity to provide the testimony of the Department of the Interior and the U.S. Fish and Wildlife Service on the Administration’s proposal to reauthorize the Marine Mammal Protection Act (MMPA or Act) of 1972. I am Marshall Jones, Deputy Director of the U.S. Fish and Wildlife Service. The MMPA was the first of the landmark conservation laws enacted in the 1970s; it turned thirty years old in 2002. The Act established an ongoing federal responsibility, shared by the Secretaries of the Interior and Commerce, for the management and conservation of marine mammals. The Secretary of the Interior, through the Fish and Wildlife Service (Service), protects and manages polar bears, sea and marine otters, walruses, three species of manatees, and the dugong. The Administration strongly supports reauthorizing the MMPA. Thirty years of implementation have demonstrated the Act’s effectiveness in conserving and replenishing marine mammal populations. In addition to its support of reauthorization, the Administration and its partners have identified several areas of the Act that will benefit from well-considered changes. To this end, we have crafted a comprehensive set of amendments that represents a real step forward for marine mammal conservation, as well as makes corrections and adjustments to the legislation based on our experience in implementing the Act since the last reauthorization in 1994. These amendments are contained in a legislative proposal to reauthorize the MMPA, which was transmitted by the Administration to Congress in February of this year. The proposal reflects the diligent and coordinated work of the Service, NOAA Fisheries, the Marine Mammal Commission (Commission), our Alaska Native partners, and other Federal and non-governmental partners. We look forward to working with the Subcommittee in a dedicated effort to reauthorize the MMPA and enact these proposed amendments during this session of Congress. My testimony will discuss some of the key amendments proposed by the Administration. Proposed Amendments Harvest Management Agreements An important component of the Administration’s reauthorization proposal is an amendment to expand the authority of section 119 of the MMPA, which relates to cooperative agreements with Alaska Natives, to authorize harvest management agreements between the Secretary and Alaska Native Tribes or Tribally Authorized Organizations. These agreements would be designed to prevent the depletion of marine mammal stocks in Alaska and would demonstrate the commitment of the Federal government to continuing to develop our partnership with these organizations. The MMPA prohibits take (e.g., harass, hunt, capture or kill) of all marine mammals. However, the Act provides exceptions to the prohibition. One of these exceptions allows take of marine mammals by Alaska Natives for subsistence purposes. Subsistence harvest is not subject to regulation, unless the harvested animals are from a population that is depleted, or if the harvest is wasteful. This exception presents the possibility that Native harvest of non-depleted stocks could reduce some of those stocks to depleted status. In fact, this situation has already occurred. Beluga whales in Cook Inlet declined dramatically in the mid-1990s due to over-harvest. The stock became depleted. Representatives of the Native community expressed their desire to develop a local management structure with federal support for regulating harvest of marine mammal stocks. The intent would be to prevent such a situation – where stocks become depleted by harvest – from reoccurring. In response to the interest of the Native community in developing a harvest management structure, the responsible federal agencies, including the Service, NOAA Fisheries, and the Commission, cooperatively developed a proposed amendment with the Alaska Native community. The amendment would allow regulation of subsistence take of non-depleted marine mammal stocks, and would thus provide substantial conservation benefits to marine mammals. Under the proposal, harvest management regimes would be initiated and developed using existing authorities. If the responsible federal agency agrees to, and adopts, a harvest management regime, the agency would be authorized to make assistance available to implement and enforce the management provisions. The proposal provides new responsibilities and a meaningful role for the Native community in resource management. The proposed amendment requires that harvest management plans be designed to maintain a sustainable harvest. Each plan must describe the following: the entities involved in developing the plan; the geographic scope of the plan; enforcement authorities; the biological and management basis for harvest restrictions; the duration of the agreement; and the agreement’s review provisions. Entities eligible to enter into such agreements are specifically defined as “Alaska Native Tribes or Tribally Authorized Organizations.” The intent of this definition is to specifically identify the types of organizations that are qualified, because implementation will rely on existing tribal authorities, rather than creating new Federal regulations. A harvest management agreement would initially be negotiated between the appropriate federal agency and the eligible entity. Public involvement would then be solicited through a notice and review process. The proposed amendment specifically identifies the existing authorities for these provisions and makes clear that this approach creates no new sovereign, tribal authorities. We believe that this amendment will create a strong conservation tool to ensure the long-term conservation of marine mammal populations in Alaska. The amendment’s cooperative approach will facilitate partnerships to avert management crises that can arise under the current system. Without the proposed amendment, additional species may become depleted through excessive subsistence harvest. Activities by some individual hunters could continue to create conflict that the community would like to address but cannot under current law. We have worked closely with Alaska Native representatives on this proposal and strongly endorse its enactment. Southern Sea Otter - Fishery Interaction Data Southern sea otters are incidentally taken in fishing operations, but the extent of this take is not known. Pursuant to Section 118 of the Act, which addresses the take of marine mammals incidental to commercial fishing operations, the Department would like to gather information on fishery interactions with southern sea otters in California. MMPA reauthorization provides an opportunity to address this need by providing for enhanced efforts to assess the impact of commercial fisheries on this threatened sea otter population. The Administration’s MMPA reauthorization proposal includes an amendment to section 118(a) (4) of the Act that would require the Secretary of Commerce to include information concerning California sea otters in the list of fisheries published under section 118. In addition, California sea otters would be included in determinations pursuant to section 118(d) of the Act regarding establishment of monitoring programs and placement of on-board observers on fishing vessels to monitor interactions and assess the levels of mortality and serious injuries in the population. Presently, section 118 specifically excludes California sea otters from the incidental taking exception, and nothing in this amendment is intended to change that. The proposed language is solely intended to enhance efforts to assess impacts that commercial fisheries may be having on this threatened sea otter population in order to provide a more informed basis for recovery efforts. Polar Bear Permits In 1994, Congress added a provision to the Act to allow for the issuance of permits authorizing the importation of polar bear trophies taken in sport-hunts in Canada if certain findings are made. The 1994 amendments specified that applications for such permits did not require review by the Marine Mammal Commission, but retained the requirements for public notice prior to and after issuance or denial. The Service has processed on average 90 applications for polar bear permits annually for the past six years. Although notice of each application has been published in the Federal Register, no comments have been received. The proposed amendment to section 104(d) would streamline the permitting process and reduce the administrative expense associated with publishing two notices for each application to import a trophy of a polar bear taken before the enactment of the 1994 amendments or from an approved population. Since findings that allow for multiple imports were made after public comment, the approval of individual permits is largely a pro forma administrative process – an import is allowed if the particular bear was taken legally from an approved population. To ensure that the public continues to have current information on these types of permits, the proposed amendment requires the Service to make available, on a semiannual basis, a summary of all such permits issued or denied. Research Grants The Administration also continues to be interested in the potential for research grants as described in Section 110(a) of the MMPA. A proposed amendment to this section would reauthorize research grants, and would make clear that grants under this provision may be targeted at plant or animal community-level problems (i.e., ecosystem problems). The Secretaries would be given flexibility to determine which research projects to fund. However, the proposed amendment highlights the following ecosystems as high priorities for research grants. Bering Sea – Chukchi Sea Ecosystem – The Bering and Chukchi Seas have extensive, shallow shelves and, as a result, are some of the most productive areas in the world’s oceans. These regions offshore of Alaska are undergoing significant environmental changes, including rapid and extensive sea ice retreat, extreme weather events, and diminished benthic productivity. Such dynamics are likely having ecosystem-wide effects. As such, there is a pressing need to monitor the health and stability of these marine ecosystems and to resolve uncertainties concerning the causes of population declines of marine mammals, sea birds, and other species. As residents of the region largely depend upon marine resources for their livelihood, research on subsistence uses of such resources and ways to provide for the continued opportunity for such uses must be an integral part of this effort. California Coastal Marine Ecosystem – The southern sea otter, listed as threatened under the Endangered Species Act, has been experiencing an apparent population decline since the mid-1990s. The reasons for the decline, however, remain uncertain. Possible reasons include: introduction of new or unusual diseases; exposure to new or higher levels of chemical pollutants; incidental take in new or relocated fisheries; and decreases in key prey species due to temporary El Niño effects, long-term climate fluctuation, or otter densities exceeding carrying capacity levels within their current range. These ecosystems are of great importance to marine mammal populations and would benefit from system-wide studies. Definition of Harassment The Administration has proposed a revised definition of the term “harassment,” found in Section 3(18) (A) of the Act. This amendment would make the definition more enforceable by making it apply to “any act,” as opposed to the current statutory definition, which is limited to acts involving “pursuit, torment, or annoyance.” The Administration’s proposed definition would provide greater notice and predictability to the regulated community by providing a clear threshold for what activities do or do not constitute harassment. The new language would define “Level A harassment” as “any act” (as opposed to acts of “pursuit, torment, or annoyance”) that injures or has the significant potential to injure a marine mammal. “Level B harassment” would be defined to include “any act” that either disturbs or is likely to disturb a marine mammal’s natural behavioral patterns to a point where the patterns are abandoned or significantly altered or is directed towards a specific individual or group and is likely to cause disturbance by disrupting natural behavior. We believe that these changes to the definition will not compromise conservation of marine mammals. Conclusion Madam Chair, in closing, I would like to thank you once more for the opportunity to discuss the Administration’s proposal to reauthorize the MMPA. We are committed to conserving and managing marine mammals by working with our partners in a cooperative fashion. In particular, I want to emphasize our commitment to continued collaboration with our partners in Alaska to further enhance their role in the conservation and management of marine mammals. We believe that the changes we have proposed will allow us to be more effective in addressing our responsibilities in marine mammal management. We look forward to working with you and members of the Committee to enact meaningful improvements to the MMPA during this Congress and to demonstrate to the Nation our shared commitment to conserving marine mammals. Madam Chair, this concludes my remarks. I am happy to answer any questions that you or members of the Committee might have.
Witness Panel 2
Ms. Nina Young
Madam Chairwoman and Members of the Subcommittee, thank you for the opportunity to present our views on the Marine Mammal Protection Act. My name is Nina M. Young; I am the Director of Marine Wildlife Conservation for The Ocean Conservancy. I. SUMMARY STATEMENT The Ocean Conservancy (formerly the Center for Marine Conservation) played a leadership role in the development of the 1994 amendments to the Marine Mammal Protection Act (MMPA or Act), especially those governing the incidental take of marine mammals in commercial fisheries. The Ocean Conservancy believes that with the sweeping changes made in 1994, Congress refined the Act and brought it closer toward achieving its goal of recovering marine mammal populations. The MMPA is an international model for effective conservation and protection of marine mammals. In our view, problems with the MMPA often stem not from the Act itself, but from the agencies’ failure to implement the Act fully and effectively, compounded by a chronic lack of resources for effective implementation. During this reauthorization, we urge the Subcommittee to seize the opportunity to craft a truly visionary reauthorization bill that will tackle the emerging threats to marine mammal conservation. The problems facing marine mammals are becoming more complex. They encompass competition with commercial fisheries, habitat degradation associated with sound production and pollution, natural phenomena such as climatic regime shifts, and long-term chronic threats such as global climate change. The MMPA must evolve from merely looking at marine mammal stock structure and abundance to assessing marine mammal and ecosystem health. Tools that already exist in the MMPA such as Title IV (Marine Mammal Health Stranding and Response) must be enhanced to establish a dedicated research program encompassing marine mammal health and the threats posed by contaminants and noise. Any reauthorization bill must not only preserve but also build on the gains that were made in 1994. In our view, an effective reauthorization bill will: prevent the weakening of the definition of harassment; safeguard the zero mortality rate goal; strengthen the MMPA penalty and enforcement provisions to deter violations of the Act; improve the implementation of the take reduction team process; expand authority under Section 118 (16 U.S.C. § 1387) to allow the Secretary to authorize take reduction teams for fishery interactions involving prey related issues and human related threats (i.e. ship strikes); strengthen the Act’s co-management provisions to allow co-management of non-depleted species/stocks; increase the authorized appropriation levels for the Act overall, but in particular for the health and stranding response provisions; and devise and implement a research plan to develop safe non-lethal deterrents to prevent marine mammals from interacting with fishers’ gear and catch. In the course of reviewing the MMPA through the reauthorization process, we urge the Subcommittee to take a good, objective look at claims made by the Department of Defense that the MMPA is having a deleterious effect on military training and readiness. The Department of Defense proposes to modify the MMPA’s definition of harassment, amend its incidental take authorization process, and create a separate broad categorical exemption for its activities. The proposed changes in the definition of harassment and changes in the incidental take authorization process for military readiness would severely undermine the precautionary nature of the Act, remove key conservation elements that restrict the scope of the incidental take to small numbers of marine mammals within a geographic region, and significantly raise the threshold that triggers the Department of Defense’s obligation to secure authorization to conduct activities that have the potential to harass marine mammals. The proposed definition and incidental take authorization amendments would not only increase injuries and deaths of marine mammals, but also diminish transparency, result in a loss of scientific research and mitigation measures, require federal agencies to make difficult, if not impossible, scientific judgments about whether a given activity is subject to the Act’s permitting and mitigation requirements, and impair enforcement of the Act. The end result would be that many military readiness activities would either be exempt outright or could evade the Act’s requirements by relying upon the uncertainty and ambiguity created by this new language. The problems caused by the Department of Defense’s proposed change to the definition of harassment become an even greater concern and threat to marine mammals if the Administration extends this definition change to all stakeholders as proposed in the Administration bill. Since 1994, when the MMPA was last amended, the Department of Defense has applied for over twenty incidental take and harassment authorizations. None of these applications has been denied, and in general they all have been issued within the expected timeframes. The Department of Defense has failed to show that the existing incidental take process is overly burdensome, let alone that the proposed statutory changes are needed. To the contrary, it appears that the program is functioning much as Congress intended. Rather than amend the statute, we believe that improved coordination and advanced planning may be the most expedient way to achieve both marine mammal conservation and improve efficiency in the issuance of permits for military readiness activities. The proposed exemption for national defense effectively creates an escape clause which allows the Defense Department to bypass the incidental take permitting process altogether. Moreover, this exemption is not limited to the incidental take permitting process. As written, it authorizes the Secretary of Defense to exempt “any action or category of actions undertaken by the Department of Defense or its components from compliance with any requirement” of the MMPA for reasons of national defense for a potentially unlimited number of successive two-year periods. Again, despite numerous Congressional hearings, the Department of Defense has failed to demonstrate that an irreconcilable conflict exists within the incidental take authorization or other provisions of the MMPA, or that the flexibility currently provided under the Armed Forces Code is insufficient to merit such a comprehensive and wide-ranging exemption—one that could render the MMPA’s conservation goals and mandates virtually meaningless. Our comments are organized as follows: first, we provide our section-by-section comments on the Administration bill. Next, we provide additional recommendation for changes to the statute to further marine mammal protection and conservation. Finally, we address the problems with the Department of Defense’s proposed amendments to the definition of “harassment,” the incidental take provisions, and the proposed addition of an exemption for national defense. Before I begin, however, I would like to emphasize that as the MMPA reauthorization debate proceeds, The Ocean Conservancy would welcome the opportunity to engage in a multi-stakeholder process to resolve concerns with the Administration bill and the Department of Defense’s proposal, and to develop a non-controversial and forward thinking reauthorization bill. We believe this type of inclusive process would in the long run provide the greatest benefits to the resource and the nation. II. DETAILED COMMENTS ON THE ADMINISTRATION BILL TITLE I: AUTHORIZATION OF APPROPRIATIONS Department of Commerce The Ocean Conservancy encourages the Subcommittee to further increase the authorized appropriation levels for both the Department of Commerce and the Department of Interior, to enhance implementation of the MMPA through improved marine mammal stock assessments and health-related research, increased staff resources to process scientific and small take permits, finalize regulations to implement take reduction plans within the timeframe stipulated in the Act and oversee the implementation of such plans, comply with the mandates of Title IV (Marine Mammal Health and Stranding Response Program), and increase observer coverage of Category I and II fisheries. The Ocean Conservancy believes that the authorization level for the Department of Commerce to carry out the implementation of Sections 117 and 118 (16 U.S.C. §§ 1386-87) is woefully inadequate. For example, Section 117 calls for the National Marine Fisheries Service (NMFS) and the Fish and Wildlife Service (FWS) to produce stock assessment reports that include a description of the stock's geographic range, a minimum population estimate, current population trends, current and maximum net productivity rates, optimum sustainable population levels and allowable removal levels, and estimates of annual human-caused mortality and serious injury through interactions with commercial fisheries and subsistence hunters. The data in these reports are used to evaluate the progress of each fishery towards achieving its goal of zero mortality and serious injury. NMFS has defined a total of 145 cetacean and pinniped stocks in United States waters: 60 stocks in the Atlantic Ocean and Gulf of Mexico; 54 along the Pacific Coast of the continental United States and Hawaii; and 31 in Alaska and the North Pacific. Accurate abundance estimates and stock identifications are essential to determine trends and population size relative to the optimum sustainable population level, and to calculate the potential biological removal (PBR) level. These are also necessary to ensure that individual stocks are not subjected to intolerable levels of take. Abundance is estimated from counts conducted during aerial or shipboard surveys, and from photo-identification data combined with mark-recapture technology. The most obvious consequence of uncertainty regarding stock abundance or structure is that PBR levels, which are a direct function of stock abundance, become uncertain as does the tolerance of a marine mammal stock to human-caused mortality. If PBR levels are overestimated, then the stock may be exposed to unknown and excessive levels of risk from human-caused mortality. If PBR levels are underestimated, then fishers and fisheries may be unduly restrained by unnecessary regulations. The risk of excessive take from a single stock can be exacerbated when multiple stocks are being managed but the characteristics of each stock (abundance, take levels) cannot be accurately determined. NMFS desperately needs to either undertake and/or update marine mammal stock assessments in the Gulf of Mexico, the Atlantic Ocean and the Pacific Ocean (around the Hawaiian Islands). Similarly, FWS stock assessments for Alaskan marine mammal stocks under its jurisdiction (polar bear, walruses, and sea otters) must also be updated. In addition, monitoring of commercial fisheries is sorely lacking, as are estimates of incidental take for these fisheries. The MMPA’s management framework can only be effectively implemented if incidental take levels are measured accurately and precisely to determine if, where, and when takes are occurring. A take reduction team can recommend effective measures that will reduce the number of takes only if incidental take levels can be reliably estimated. Therefore, reliable estimates of incidental take are fundamental to identifying the problem/interaction, devising mitigation measures, and obtaining feedback regarding the efficacy of those measures. Currently, observation or monitoring of some fisheries that interact with marine mammals is either absent altogether or insufficient to allow even minimal estimates of incidental take. A chronic problem for fisheries that are observed is that the data do not provide the precision needed to estimate incidental take levels with statistical confidence sufficient to detect a real change in the take rate. NMFS must be provided the funds to increase the level of observer coverage in fisheries that interact with marine mammals to derive statistically reliable estimates of incidental take. NMFS must also continue to fund established take reduction teams until they achieve their goals under the MMPA. Additionally, NMFS should convene several other take reduction teams, including a reconstituted Atlantic Offshore Take Reduction Team. The table below, from NMFS’ website, provides a breakdown of cost for the various stages of a take reduction team process. Based on this information, the agency is spending approximately $5 million per year on take reduction teams. Most of the teams are in the monitoring and follow-up stage, with the exception of the Bottlenose Dolphin Take Reduction Team, which submitted its consensus plan in April 2003. Therefore, we recommend that the Subcommittee increase the annual authorization for the Department of Commerce for Sections 117 and 118 to $35,000,000. Generalized Take Reduction Process Stage Element Time Cost (not including NMFS salaries) Pre-team data collection Abundance surveys 1-3 surveys $350K per survey Mortality estimates 3 years of observer coverage $850K per year per fishery Stock structure data 1-3 surveys $350 K per survey Fishery characteristics data Active TRT Contracting 2-2 ½ years(if mortality is >PBR, teams have 6 months to submit plan to NMFS once team is convened) $500K(4-5 meetings) Hiring facilitator Assembling team Meetings/travel costs TRP Development and Implementation Proposed rule 6 months (legally is 60 days) Staff resources Final rule 6 months(legally is 90 days including public comment period) Staff resources TRP Monitoring and TRT Follow-up Mortality estimates 3-5 years of observer coverage $850K per year per fishery Reconvening teams As necessary $100K per meeting Department of Interior The Department of Interior implements the MMPA for polar bears, sea otters, walrus, and manatees. The Ocean Conservancy is requesting an authorization of $11,800,000 to improve research and conservation efforts for these species. The FWS is badly in need of revised stock assessments for manatees, walrus, and polar bears, ongoing trend data for declining northern sea otters, and a comprehensive health assessment of southern sea otters. Marine Mammal Commission The Marine Mammal Commission (MMC) plays a vital oversight role in the implementation of the MMPA. The MMC is best suited to evaluate emerging threats to marine mammals and offer mitigation strategies. As an independent body it can provide valuable guidance on measures to conserve marine mammals not only to wildlife agencies but also to other interest groups that interact with or incidentally take marine mammals. Over the last several years that role has been severely constrained due to insufficient funds. We recommend that the authorization for the MMC be increased to 3,400,000. TITLE II: NATIVE ALASKAN HARVEST MANAGEMENT AGREEMENTS Subsistence Hunting of Marine Mammals--Management of Strategic Stocks The management history of the subsistence harvest of beluga whales in Cook Inlet illustrates the need for proactive federal intervention and management to avoid a marine mammal species becoming eligible for listing as depleted under the MMPA. The purpose of the definition of “strategic” marine mammal stocks in Section 3(19), 16 U.S.C. § 1362(19), is to identify unsustainable levels of take so that appropriate action can be taken to avoid listing that stock as depleted under the MMPA or as threatened or endangered under the ESA. While The Ocean Conservancy does not oppose subsistence use, we believe that in cases where marine mammal stocks are designated as strategic, the federal government should be given the discretion to intervene and work with Native communities to monitor and regulate harvests to ensure the long-term health of the stock and sustainable subsistence harvests. Therefore, we propose that Section 101(b), 16 U.S.C. § 1371(b), be amended to allow the Secretary to prescribe regulations governing the taking of members of a strategic stock by Native communities. Co-Management of Strategic and Depleted Stocks While The Ocean Conservancy does not oppose subsistence hunting when conducted in a sustainable manner, we believe that future co-management agreements should generally be limited to stocks that are not strategic or depleted. We support co-management of all non-strategic stocks as long as the co-management agreement considers take throughout the entire range of the stock, includes all Alaskan Natives that engage in subsistence use of that particular marine mammal stock within the area covered by the agreement, provides that any harvest of a stock covered by the agreement is sustainable and designed to protect the stock from becoming depleted or strategic, and contains effective provisions for monitoring and enforcement. A co-management agreement should also provide for review and revocation of the agreement, tie violations of the agreement to the penalty provisions of the Act, and provide grants for research, monitoring, and enforcement of the agreement. Before a co-management agreement is finalized, or final implementing rules or regulations are published, the public must be afforded an opportunity for notice and comment. We do not believe that the Secretary should be required to consult with Alaska Native Tribes and Tribally Authorized Organizations on depletion determinations under section 3(1)(A) or to provide them with an advance copy of draft proposed regulations under section 101(b)(3). The consultation provision under section 3(1)(A) currently only applies to MMC and its Committee of Scientific Advisors on Marine Mammals; section 101(b)(3) of the Act already provides adequate opportunity for notice and hearing by interested members of the public. We do not oppose the Administration’s provisions for cooperative enforcement, authorizations of appropriations, and sovereign authorities/disclaimer. The Ocean Conservancy looks forward to working with Alaska Native Tribes and Tribally Authorized Organizations on this Title. TITLE III: CULTURAL EXCHANGE AND EXPORT The Ocean Conservancy supports the intent of this provision in the Administration bill to clarify and amend the relevant provisions in the Act to identify those instances when export, transport, sale, or purchase of a marine mammal or marine mammal product is, or may be, authorized. We are concerned, however, that as drafted these provisions may not achieve their purpose. TITLE IV: FISHERIES INTERACTIONS Because the Marine Mammal Protection Coalition is not taking a collective position on Sec. 401. Tuna-Dolphin Provisions in the Administration bill, our comments will be restricted to the fishery interaction provisions. The Subcommittee should anticipate that individual organizations may provide their position on the Administration bill’s Sec. 401. Tuna-Dolphin Provisions. Sec. 402. Fishery Interaction Provisions We generally support the amendments in the Administration bill; however, the bill is not sufficiently comprehensive in its approach to improving Section 118 (16 U.S.C. § 1387). The Subcommittee should seize this opportunity to refine this section to address problems that have arisen related to fishers obtaining the required authorization, placement of observers, and the need for funding observer coverage. The Ocean Conservancy offers the following additional suggestions. Registration and Authorization: The MMPA currently requires vessels engaging in Category I and II commercial fisheries to register with the Secretary to receive authorization to engage in the lawful incidental taking of marine mammals in that fishery. The MMPA provides the Secretary with the authority to place observers on commercial vessels engaging in Category I and II fisheries, and vessels that have received authorization to engage in these fisheries are obligated to take observers on board. The Ocean Conservancy supports the Administration’s effort to clarify these issues in its bill, by adding a new clause (v) to section 118(c)(3)(A). During several take reduction team negotiations, NMFS has remarked on instances where vessel owners have refused to allow observers on their vessels without adverse consequences. NMFS Enforcement has indicated that its efforts to enforce the Act are constrained because NOAA’s Office of General Counsel has narrowly interpreted the term “engaged in a fishery” under Section 118(c)(3)(C) to mean engaged in the fishery on the day that a refusal to take an observer occurs. The MMPA should be amended to clarify the obligations of vessel owners in Category I and II fisheries to carry observers if so requested and to provide NMFS with the explicit authority to punish violations of the observer requirements. If the problem is related to the term “engaged in a fishery” then the Act should also be amended to define the term to facilitate enforcement. The Subcommittee should consider strengthening the incentives for fishers to register under this section by allowing NMFS to seek forfeiture of the catch and to assess a substantial fine against the vessel for any fishing operations conducted in the absence of the required authorization. This could be done by amending section 118(c)(3)(C) or the penalty and forfeiture provisions under section 105 and 106. In any case, the fine currently stipulated in the Act for failure to display or carry evidence of an authorization is not a sufficient deterrent to noncompliance. Monitoring Incidental Takes: Nearly every take reduction team recommends increased observer coverage. Funds for monitoring programs have been limited; generally, only fisheries experiencing frequent interactions with marine mammals have received priority for observer program coverage. Former NMFS Assistant Administrator Penny Dalton noted in her June 29, 1999, testimony before the House Resources Committee that: “Funds for monitoring programs have been limited; therefore, only fisheries experiencing frequent interactions with marine mammals have generally received priority for observer program coverage. In 1997, approximately 1/5 of the U.S. fisheries having frequent or occasional interactions with marine mammals were observed for these interactions. These large gaps in our knowledge of fisheries’ impacts to marine mammal stocks make it difficult to develop appropriate management measures.” In most cases, shortfalls in program funding often result in diminished observer coverage. Consequently, The Ocean Conservancy strongly believes that the Secretary should have the discretion to assess fees, as needed, to initiate and implement an observer program, particularly for those fisheries that request such a program. Take Reduction Plans: The Administration bill proposes an amendment to eliminate the requirement that a take reduction plan be developed for each strategic stock that interacts with a Category I or II fishery. The rationale behind this amendment is that some stocks are considered “strategic” solely because they are listed as threatened or endangered under the Endangered Species Act—not because of high fishery-related mortality. The proposed amendment would eliminate the requirement that a take reduction plan be developed for those strategic stocks for which the Secretary determines, after notice and comment, that the fishery-related mortality and serious injury is having a negligible impact on that stock. While we agree that this amendment will allow the agency to focus limited resources, this goal may be achieved through an amendment that sets priorities for take reduction plans rather than providing the Secretary with the discretion to eliminate take reduction plans entirely for some strategic stocks. The take reduction team and plan offers the Secretary with the ability not only to reduce fishery-related mortality and serious injury, but also potentially diminish deleterious effects to marine mammal stocks from competition for prey with commercial fisheries. We urge the Subcommittee to consider an amendment to Section 118(f) that would provide the Secretary with the discretion to develop and implement a plan designed to assist in the recovery or prevent the depletion of any marine mammal stock for which the Secretary determines, after notice and opportunity for public comment, that competition between a commercial fishery and that marine mammal stock for a stock of fish that constitute the marine mammal stock’s prey is having or is likely to have an adverse impact on the marine mammal stock. Such an approach would conserve the fishery, the marine mammal stock, and the prey species, through integrated research, conservation, and mitigation with regard to fishery management. We support the Administration’s proposed amendment to require that a technical liaison with commercial fishing expertise be assigned to the take reduction team to enhance communication among team members about possible modifications to fishing practices and gear. We also recommend that the Subcommittee consider an amendment to require the participation of representatives from the office of General Counsel of the National Oceanic and Atmospheric Administration, the National Marine Fisheries Service having responsibilities related to fisheries science and law enforcement, and the appropriate National Marine Fisheries Service Regional Administrator. These individuals are crucial to advise the team on the likelihood that the proposed measures can be easily translated into regulatory language, enforced, are not in conflict with other fishery management measures, and will be supported by the agency. We support the amendment in the Administration bill that provides the Secretary the discretion to reconvene or consult with the take reduction team to solicit comments on the proposed regulations and any proposed changes to the draft plan during the public review and comment period. Sec. 403. Expansion of Fisheries Included in the Incidental Take Program/Sec. 404. Conforming Amendments to the Expansion of Fisheries Included in the Incidental Take Program Some non-commercial fisheries use gear similar or identical to commercial fishing gear and, as a result, are taking marine mammals at rates potentially equal to or greater than rates of incidental bycatch in commercial fisheries. However, according to NMFS, there are currently no mechanisms within the MMPA to monitor, track, or mitigate this take. As a matter of equity, and for purposes of effective marine mammal conservation, non-commercial fisheries that employ gear similar to commercial fishing gear and that have the same potential to take marine mammals should not be exempt from the Act. Therefore, The Ocean Conservancy supports the Administration’s proposed amendments to include these fisheries under the provisions of Section 118. Sec. 405. Striking of Section 114/Sec. 406. Conforming Amendments to the Striking of Section 114. Given that Section 118 is fully functional, there is no longer any need for the interim exemption for commercial fisheries provided for in Section 114 (16 U.S.C. § 1383a). Therefore, Section 114 should be repealed and the necessary technical and conforming amendments made to other provisions in the Act. Sec. 407. Gulf of Maine Harbor Porpoise The purpose of this subsection was to allow the Secretary to expedite the preparation of a stock assessment for the Gulf of Maine stock of harbor porpoise and to delay the date by which the incidental mortality and serious injury of this stock was reduced below its potential biological removal level. These dates have passed and the take reduction plan (through a combination of fishery management closures, restrictions, and pinger requirements) has met its goal of reducing the incidental mortality and serious injury of this stock below its potential biological removal level and is approaching the zero mortality rate goal. Therefore we support the elimination of this section. Sec. 408. California Sea Otter Fishery Interactions The Administration bill also proposes to include southern sea otters in the section 118 incidental take program for purposes of listing fisheries that are involved in sea otter interactions and for determinations regarding monitoring. Currently, the MMPA excludes southern sea otters from section 118 because of the species' extreme vulnerability to incidental take and the existence of freestanding requirements that govern incidental take, as set forth in Public Law No. 99-625, establishing the so-called zonal management program. The requirements of Public Law No. 99-625 prohibit all incidental take of sea otters, except within the narrowly defined translocation zone. The proposed amendment would be of no real benefit to southern sea otters. Under current law, incidental take is prohibited throughout most of the species' range, and there is no reason to classify the involved fisheries. Including sea otters for this purpose could be the basis for arguments that incidental take should be authorized under section 118, a result which would be detrimental to the species and contrary to existing law. FWS is currently conducting a review of the failure of the zonal management program under Public Law No. 99-625. Upon the conclusion of that review, it would be appropriate to consider whether to include southern sea otters in any aspect of the section 118 program. Sec. 409. Alternative Observer Program This amendment directs the Secretary to explore the use of new technologies for alternative monitoring of fisheries. We fully support this amendment, as the absence or extremely low level of observer coverage continues to be a major obstacle in devising and evaluating mitigation strategies to reduce the incidental mortality and serious injury of marine mammals in commercial fisheries. Alternatives or remote monitoring systems that allow for expanded coverage or improved data collection will advance the take reduction team’s ability to craft effective bycatch reduction measures. TITLE V: OTHER AMENDMENTS Sec. 501. Polar Bear Permits In 1994, Congress provided for the issuance of permits authorizing the importation of trophies of sport-hunted polar bears taken in Canada, subject to certain findings and restrictions. The amendments required the public to be given notice prior to and after issuance or denial of such permits. The Administration bill proposes to change this public notification process to a semiannual summary of all such permits issued or denied. The Ocean Conservancy opposes this provision, as it would establish a blanket exemption to the notice and comment requirement and institute a dangerous precedent under which permits could be issued or denied without much-needed public scrutiny. The public comment process surrounding the issuance of a permit to import polar bear parts is needed to provide public oversight to verify that a permit is tied to tagging that clearly demonstrates when, and from what stock, the polar bear was taken. Rather than weakening the public comment process, FWS should work to ensure that these provisions are effectively enforced and do not result in illegal take or a negative change in the status of stocks that are currently depleted. Sec. 502. Captive Release Prohibition This section amends section 102 of the Act to clarify that subject to certain limited exceptions, the MMPA expressly prohibits any person from releasing a captive marine mammal unless specifically authorized to do so under a permit issued pursuant to sections 104(c), or 109(h). The Ocean Conservancy supports the Administration’s proposed amendment. We are sensitive to the potential harm that might result, in the absence of mandatory precautionary measures established as conditions of a captive release permit, to the animals released and to wild populations they encounter, through disease transmission, inappropriate genetic exchanges, and disruption of critical behavior patterns and social structures in wild populations. We support this provision but believe that the Administration’s proposal would benefit from language that clarifies that the prohibition applies to any person subject to the jurisdiction of the United States and to any marine mammal maintained in captivity at a facility in the United States or on the high seas. Sec. 503. Penalties The Ocean Conservancy believes that Section 105, the civil and criminal penalty provisions of the Act (16 U.S.C. § 1375), should be updated to reflect current economic realities. The existing penalty schedule, enacted thirty years ago and unchanged since enactment, sets penalties that are low enough to be viewed by some violators as an acceptable cost of doing business, thus undermining effective enforcement. We support the Administration’s proposal to amend Section 105 of the Act to authorize the Secretary to impose a civil penalty of up to $50,000 for each violation, and a fine of up to $100,000 for each criminal violation. The penalty for failure to display or carry evidence of an authorization, currently set at a maximum of $100, also needs to be increased to $5,000. Sec. 504. Vessel Fines and Cargo Forfeiture To increase compliance with the MMPA by ensuring that penalties will deter future violations of the statute, we support the Administration’s proposed amendment to Section 106 (16 U.S.C. § 1376), to authorize the Secretary to impose a civil penalty of up to $50,000 against vessels used to take marine mammals and vessels that fish in violation of the provisions of section 118 of the Act. We also support amendments to section 106 that allow for the seizure and forfeiture of a vessel’s cargo for fishing in violation of the provisions of section 118. Sec. 505. Marine Mammal Commission Administration We support this provision. The per diem rate in the Act is too low. Consequently, this provision precludes the MMC from securing the services of most experts and consultants. By removing this restriction, the MMC will be brought under the government-wide rules for the payment of experts and consultants. Sec. 506. Enforcement This section would amend section 107(b) by requiring the Secretary to take steps to enter into cooperative enforcement agreements with states. We support this provision as it will likely provide more local enforcement of MMPA provisions. Sec. 507. Interference with Investigations and Authorized Activities The MMPA currently contains no specific prohibition against activities that undermine the effective implementation and enforcement of the Act. Individuals who refuse to permit boardings, who interfere with inspections or observers, or who intentionally submit false information may not be subject to prosecution under the MMPA, as such activities are not specifically prohibited. To address this long-standing deficiency within the MMPA, we support the Administration’s proposed changes but believe that they could be strengthened by including provision similar to those currently found in the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. § 1857) that include specific language related to observer harassment and interference and the submission of false information. Sec. 508. Authorizations for Marine Mammal Health and Stranding Response The Marine Mammal Health and Stranding Response Program under Title IV (16 U.S.C. §§ 1421-21(h)) should retain its own separate authorization provision. See 16 U.S.C. § 1421(g). Title IV is critical to the recovery and health of marine mammal populations. To date, the Marine Mammal Health and Stranding Response Program has greatly improved the response to routine strandings of marine mammals and unusual mortality events. Nevertheless, unexplained die-offs of marine mammals have continued on almost an annual basis along the United States coastline, and the wildlife agencies’ response to these die-offs has been hampered by a lack of funding. Without adequate funding, the agencies cannot be proactive, develop a strong marine mammal health assessment program, support volunteer stranding networks, or develop accurate baseline information on stranding rates, contaminants, disease, and other factors related to detecting and determining causes of unusual mortality events. Furthermore, the lack of funds hinders these agencies’ ability to fully develop and implement contingency programs to respond to die-offs or oil spills, and subsequently determine the cause of these die-offs that are potential indicators of the health of the marine environment. The Administration’s proposal is insufficient. An unusual mortality event could deplete the proposed $125,000 in just tissue sample analysis alone. We recommend that the Subcommittee provide a separate $2,000,000 annual authorization to NMFS for Title IV other than sections 405 and 407, a $2,000,000 annual authorization for carrying out section 407, and a specific annual authorization of $750,000 to the Marine Mammal Unusual Mortality Event Fund. Sec. 509. Stranding and Entanglement Response/Sec. 510 Entanglement Definition Each year, an ever-greater number of marine mammals become entangled in fishing gear and other marine debris. It is important that NMFS and FWS have the explicit authority to collect information on these entanglements. Disentanglement has proven an effective mitigation measure for humpback whales, northern fur seals, California sea lions, and Hawaiian monk seals, and has proven to be significant to the survival of the North Atlantic right whale. These efforts promote the conservation and recovery of these species and should continue as a matter of priority. To improve efforts to monitor and respond to entanglement threats to marine mammals, The Ocean Conservancy supports the Administration’s proposed amendments to Title IV, 16 U.S.C. §§ 1421-1421h, to expand the requirements in this title to include entanglement situations and to define the term entanglement. We recommend that section 402(b)(3), 16 U.S.C. § 1421(a)(b)(3), also be amended to require the Secretary to collect, update, and analyze such information on entanglements, not just strandings. Sec. 511. Unusual Mortality Event Funding. We support the proposed amendment in the Administration bill to expand the sources of funding available to the Marine Mammal Unusual Mortality Event Fund. The current language in the MMPA limits the Secretary’s ability to allocate funds appropriated generally for the purposes of implementing the MMPA; removing this limitation will facilitate NMFS’s response to unusual mortality events. We recommend, however, that the proposed language be amended to clarify that the Fund does not include all amounts appropriated to the Secretary under this Act but only so much of those funds as the Secretary deems necessary and appropriate. In 1994, Title IV, Marine Mammal Health and Stranding Response, was amended to allow funds from the Unusual Mortality Event Fund to be used for the care and maintenance of marine mammals seized under section 104(c)(2)(D) (16 U.S.C. § 1374(c)(2)(D)). The Marine Mammal Unusual Mortality Event Working Group opposes the use of these funds for this purpose, as does The Ocean Conservancy. This situation could rapidly deplete funds that are needed to respond to unusual mortality events. The need for funds to provide for the care and maintenance of seized marine mammals should be addressed in either the Animal Welfare Act or in another provision of the MMPA. Furthermore, potential contributors to the fund might be deterred by this provision due to the controversy surrounding marine mammals in captivity. The Ocean Conservancy recommends that this provision in Section 405(b)(1)(A)(iii), 16 U.S.C. § 1421d (b)(1)(A)(iii), be deleted. Sec. 512. Marine Mammal Research Grants. The Ocean Conservancy supports the Administration’s proposed amendments to Section 110 which authorizes the Secretary of Commerce and the Secretary of Interior to provide grants or other forms of financial assistance for research relevant to the protection and conservation of marine mammals and the ecosystems on which they depend. We believe that the shift to funding research that would target ecosystem-level problems is in keeping with the emerging threats to marine mammals that appear more symptomatic of ecosystem-based problems. We believe, however, that the Subcommittee should include a specific authorization for this section. Sec. 513. Traveling Exhibits/Sec. 514 Definition of Traveling Exhibits. This section would amend Section 102 to prohibit traveling exhibits of cetaceans. Because of the stress associated with frequent transport and subsequent acclimation periods, we support this amendment but believe that it should be extended to all marine mammals. We also support the proposed definition of traveling exhibits. Sec. 515. Definition of Harassment We will analyze the impacts of this proposed definition later in our testimony when we address the Defense Department’s amendments. Sec. 516. Fisheries Gear Development The incidental take of marine mammals in the course of commercial fishing operations remains a major source of marine mammal mortality and serious injury. New gear technologies must be developed to reduce entanglements while still allowing fisheries to continue. The Administration’s proposed amendments to section 111 would call on the Secretary to launch a new gear development and evaluation effort, establish a voluntary gear buy-back program, enhance coordination with other nations, and create a new mini-grant program to foster small scale gear development projects. We support these amendments, as we believe that gear research and buy-back programs are promising strategies for reducing marine mammal bycatch in commercial fisheries. Sec. 517. Ship Strikes of Whales The Administration’s proposed amendment would direct the Secretary of Commerce to use existing authorities under the MMPA to reduce the occurrence of ship strikes. Ship strikes constitute 50% of all human-related mortality for North Atlantic right whales. Merely directing the Secretary of Commerce to use existing authority within the MMPA will do virtually nothing to eliminate this threat. We propose that the Subcommittee consider an amendment to this section that would call upon the Secretary to develop and implement a ship strike reduction plan, the goal of which would be to reduce, within in five years of implementation, the mortality and serious injury of North Atlantic right whales caused by ship strikes to level approaching zero. The proposed amendment would be patterned after the take reduction team and plan provisions under section 118. Sec. 518. Use of Fines The Ocean Conservancy agrees that NMFS should be authorized to use any fines and penalties collected for violations of the MMPA for enforcement expenses and in the administration of its activities for the protection and conservation of marine mammals under its jurisdiction. We recommend that this provision be further amended to make these funds available to the Secretary without further appropriation. III. AMENDMENTS NOT CONSIDERED IN THE ADMINISTRATION BILL New Amendments on Deterrence of Marine Mammals Although Section 104(a)(4)(B) (16 U.S.C. § 1371(a)(4)(B)) requires the Secretary to publish a list of guidelines for safely deterring marine mammals, the Secretary has failed, to date, to comply with this provision. Both The Ocean Conservancy and the fishing industry continue to be extremely frustrated by the lack of statutorily-required guidelines for non-lethal deterrents. Because NMFS cannot enforce guidelines, The Ocean Conservancy recommends that the statute be amended to require NMFS to promulgate regulations that delineate and mandate the use of acceptable methods of safely deterring marine mammals, including threatened and endangered marine mammals, with penalties prescribed for using non-approved methods. The proposed amendment should also establish a process whereby parties may petition to have additional methods of non-lethal deterrence reviewed and approved by the Secretary. The burden of proof to demonstrate that the proposed non-lethal deterrence method is safe and effective would be on the proponent of the method. Research on Nonlethal Removal and Control of Pinnipeds Pinnipeds have never been the primary cause of a salmonid decline, nor has it been scientifically demonstrated that they have been a primary factor in the delayed recovery of a depressed salmonid species. Studies show that salmonids make up only a small percentage of pinniped diets, and that habitat loss is a primary factor in salmonid decline. Nonetheless, in 1994, the environmental community, the fishing industry, and Congress provided NMFS with the tools in Section 120 of the MMPA to address the issue of pinniped predation on threatened and endangered salmonid stocks. Sections 109 and 120 (16 U.S.C. §§ 1379, 1389) offer effective and precautionary approaches to protecting pinnipeds, salmonid fishery stocks, biodiversity, and human health and welfare. Consequently, there is no need to amend the MMPA to allow a blanket authorization for the intentional lethal removal of pinnipeds by state and federal resource agencies. Nor do we believe that such a blanket authorization would be acceptable to the public. Non-lethal deterrents hold the most promise to resolve the problems of “nuisance” animals and should be the first line of defense. NMFS has failed, however, to publish final guidelines on acceptable non-lethal deterrents. NMFS has also failed to give sufficient priority to dedicated research into the development of safe and effective non-lethal deterrents. Development of such deterrents will aid in reducing not only predation on threatened and endangered salmonid stocks, but also other conflicts between pinnipeds and humans. The Ocean Conservancy encourages the Subcommittee to consider an amendment to provide for research into non-lethal removal and control of nuisance pinnipeds. We recommend that such an amendment contain the following elements: (1) require the Secretary to develop a research plan to guide research on the non-lethal removal, deterrence and control of nuisance pinnipeds; (2) ensure that the research, development, and testing of safe, non-lethal removal, deterrence and control methods shall provide for the humane taking of marine mammals by harassment, as defined by Section 3(18)(A)(ii) of the MMPA; (3) include a broad cross-section of organizations and individuals, such as the conservation community, and representatives of the commercial and recreational fishing industries, in the development of the research program; (4) require the Secretary to report annually on the results of this research to Congress, and make the report available to the public for review and comment; and (5) authorize appropriations and new authority for the Secretary to accept contributions to carry out this section. Cumulative Takes The Ocean Conservancy is concerned that applicants may be using the streamlined mechanism for authorizing incidental takes by harassment for a period of up to one year to avoid the assessment of the cumulative impacts of such activities over time. Applicants may segment long-term activities into one-year intervals, seeking a separate authorization for each, or may seek separate authorizations for each of several similar or related activities. By themselves, these activities may have only negligible impacts, but may be of significant detriment when viewed cumulatively. Therefore, we recommend that Section 101(a)(5)(D)(i) be amended to ensure authorized activities have a negligible impact, taking into account cumulative impacts of related activities in the authorized period as well as in subsequent years. Emerging Threats to Marine Mammals The threats to marine mammals are more growing complicated. Anthropogenic sound, climatic regime shifts, and persistent pollutants do not lend themselves to simple mitigation strategies. Nevertheless, these are threats that must be researched and mitigation strategies devised to conserve and recover marine mammals. The Marine Mammal Commission should be directed to produce a report to Congress on emerging threats to marine mammals. The report would identify and assess the magnitude of emerging and existing threats to marine mammal stocks; evaluate the health of marine mammal stocks in the wild, and correlate that information with data on physical, chemical, and biological environmental parameters; identify data gaps and provide a research plan to fill such gaps; and provide recommendations for regulations or statutory changes to the MMPA to mitigate such threats. The report would also identify actions necessary to conserve marine mammals, meeting the goals of the MMPA in a proactive and constructive manner. We believe this is a perfect role for the MMC. IV. DEPARTMENT OF DEFENSE PROPOSED MODIFICATIONS TO THE MMPA The Department of Defense is seeking to amend the MMPA’s definition of harassment, create a separate incidental take authorization process for military readiness activities, and institute a broad exemption for national defense. Background Congress sought to achieve broad protection for marine mammals by establishing a moratorium on their importation and “take.” Take is defined by statute as any act “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture or kill any marine mammal” 16 U.S.C. § 1362(13). The MMPA allows the relevant Secretary to grant exceptions to the take prohibitions, by issuing either a “small take permit” or “incidental harassment authorization” if the best available scientific evidence reveals that such take would have only a negligible impact on a specific marine mammal population. Specifically, Section 101(a)(5)(A), 16 U.S.C. § 1371(a)(5)(A), of the MMPA authorizes the Secretary to permit the taking of small numbers of marine mammals incidental to activities other than commercial fishing (covered by other provisions of the Act) within a specified geographical region when, after notice and opportunity for public comment, the responsible regulatory agency (NMFS or FWS) determines, inter alia that the taking would have negligible effects on the affected species or population, and promulgates regulations setting forth permissible methods of taking and requirements for monitoring and reporting. It generally takes the agency 240 days or more to promulgate regulations. In addition, Section 101(a)(5)(D), 16 U.S.C. § 1371(a)(5)(D), provides a more streamlined mechanism for obtaining small take authorizations when the taking will be by incidental harassment only. Under this provision, the Secretary is required to publish in the Federal Register a proposed incidental harassment authorization within 45 days after receipt of an application. Following a 30-day public comment period, the Secretary has 45 days to issue or deny the requested authorization. The exemptions for incidental take are wedded to the definition of “harassment” since the definition establishes the regulatory threshold to allow the applicant to make an initial assessment whether a small take or an incidental harassment authorization is needed. The definition describes a range of impacts that the regulatory agencies must assess during the authorization process to determine whether to authorize the activity. In 1994, Congress amended the MMPA to differentiate between two general types of harassment: Level A, having the potential to cause physical injury and Level B, having the potential to impact behavior of marine mammals in the wild. The definition is as follows: (18)(A) The term ''harassment'' means any act of pursuit, torment, or annoyance which - (i) has the potential to injure a marine mammal or marine mammal stock in the wild; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering. (B) The term ''Level A harassment'' means harassment described in subparagraph (A)(i). (C) The term ''Level B harassment'' means harassment described in subparagraph (A)(ii). Proposed New Definition The Department of Defense claims that the definitions of Level A and Level B harassment added to the MMPA in 1994 are overly broad and somewhat ambiguous. In an attempt to resolve this perceived problem, the Department of Defense has proposed the following definition: For purposes of military readiness activities, the term ‘harassment’ means any act which- (i) injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild; or (ii)(I) disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behavioral patterns are abandoned or significantly altered; or (II) is directed toward a specific individual, group, or stock of marine mammals in the wild that is likely to disturb the individual, group, or stock of marine mammals by disrupting behavior, including, but not limited to migration, surfacing, nursing, breeding, feeding or sheltering. The Administration bill would extend this definition to all user groups. Problems with the Proposed Definition The most salient effect of this language is to raise the threshold of regulatory action. For Level A harassment, the proposed definition would shift from “has the potential to injure” to “injures or has the significant potential to injure.” For Level B harassment, “potential to disturb” would become “disturbs or is likely to disturb;” and an addition would be made to the language governing behavioral disruptions, requiring that “natural” behaviors be “abandoned or significantly altered.” (emphasis added). This new language would introduce new uncertainty into the Act. Adding the term “significant” to the definition would take the Act into a scientific and policy arena that is beset by ambiguity. Currently, the state of marine mammal science will not yield a clear, practical definition of “significant potential” or of “significantly altered;” indeed, these terms are likely to generate more scientific questions than answers. The term “potential” is clear and requires no further evaluation of the significance of an activity’s likelihood to injure or disturb. It is protective of the species, requiring only the disruption of basic biological functions or behavioral patterns such as migration, breathing, nursing, breeding, feeding, or sheltering—impacts that are reasonably verifiable—rather than significant alteration of these biologically important behaviors, to trigger the Act’s prohibitions. Moreover, because the definition references “disruptions in behavioral patterns,” it is clear that it does not encompass any and all behavioral modifications. The DOD and the Administration bills also add a new requirement to Level B harassment that natural behavioral patterns be disrupted to the point where such behavioral patterns are abandoned. Requiring the abandonment of critical biological behaviors for an action to constitute harassment violates the precautionary goals of the Act and sound scientific conservation principles. In addition, what constitutes “abandonment” of behavioral patterns under the proposed new definition of Level B harassment will vary according to species, gender, time scale, and the nature of the behavior itself. The proposed amendment offers no basis to determine what constitutes abandonment of behavioral patterns. Taken together, these changes would have a debilitating effect on enforcement. Under the terms of the Act, an applicant would have initial authority to decide whether its activities have the “significant potential to injure” marine mammals or are likely to “significantly alter” marine mammal behavior. A great many activities could simply evade the Act’s requirements by the Defense Department, or other applicants, relying upon the uncertainty and ambiguity in this new language and not seeking authorization in the first place. For the public or NMFS to enforce the Act in these circumstances would be difficult. The practical outcome is that many more marine mammals would be harmed by not only military activities, but other activities, such as oil and gas exploration that incidentally take marine mammals. Potentially injurious activities that were once assessed, monitored, and mitigated under the Act would no longer enter the permit process. NMFS could not ensure that the impacts of such activities on populations or stocks would be negligible. In addition, small take permit and incidental harassment authorization mitigation measures and monitoring requirements that have been effective in protecting marine mammal populations and resulted in critical information on the impacts of a particular activity would be lost. Overall, the result of these changes is likely to be more injury and death of marine mammals, less mitigation and monitoring of impacts, less transparency for the public and the regulatory agencies, and even more controversy and debate. Department of Defense Mischaracterizations of Issues Related to the Definition of Harassment. In his written testimony before the Subcommittee on Readiness of the House Armed Services Committee, Deputy Under Secretary of Defense, Raymond F. Dubois, Jr. stated that: “The new definition, as we requested last year, reflects the position of the National Research Council (NRC) and focuses on minimizing injury and biologically significant disruptions to behavior critical to survival and reproduction.” The NRC convened a panel on marine mammals and low frequency sound that, among other things, looked at the MMPA's definition of harassment (National Research Council 2000). However, the NRC recommendations differ substantially from the Defense Department’s proposed amendment. First, the NRC panel proposed no modifications to the definition of “Level A” or injurious harassment. Second, the NRC retained the current standard of probability in the definition for “Level B” harassment, by including the phrase “has the potential to disturb a marine mammal…” Third, the NRC did not raise the threshold for the disruption of natural behaviors in Level B harassment to the Department of Defense’s level of “abandonment or significantly altered.” In its testimony, the Defense Department, to bolster its assertion that the definition of harassment is flawed and must be changed, cites two examples of recent federal district court cases where scientific research was stopped due to concerns about acoustic impacts to marine mammals. Deputy Assistant Secretary of the Navy, Wayne Arny, before the Subcommittee on Readiness of the House Armed Services Committee, stated: In one case, the court enjoined seismic air gun research on geological fault lines conducted by the National Science Foundation off the coast of Mexico based on the court’s concern that the research may be harming marine mammals in violation of the ESA and NEPA. In another case a court enjoined a Navy funded research project by the Woods Hole Oceanographic Institute designed to study the effectiveness of a high frequency detection sonar (similar to a commercial fish finder) in detecting migrating Grey Whales off the coast of California. The court’s order stopped research on the development of a promising mitigation measure to avoid harming marine mammals from acoustic sources. In the case of the National Science Foundation’s (NSF) use of seismic airguns to undertake geological research, NSF never even applied for an incidental take authorization under the MMPA. In addition, the project was funded and implemented without completing an Environmental Assessment or Environmental Impact Statement under the National Environmental Policy Act (NEPA). The Woods Hole case involved a series of permits issued by NMFS for scientific research pursuant to section 104 of the MMPA. Moreover, the challenge to these permits was brought under NEPA for failure to perform the required analysis of environmental impacts, not the MMPA. Although we understand the adverse reactions that these decisions have engendered within the scientific community, these cases have little or no bearing on the sweeping statutory changes to the MMPA sought by the Department of Defense. Proposed Changes To The MMPA’s Small Take And Incidental Harassment Provisions The Department of Defense proposes to create a separate incidental take authorization process for military readiness activities. While similar to the existing small take and incidental harassment authorizations in Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA respectively, the proposed process eliminates key conservation elements that restrict the scope of the incidental take to small numbers of marine mammals while engaging in a specified activity within a specified geographic region. Deletion of Requirement That Incidental Take Authorization Be Limited to Small Numbers of Marine Mammals of a Species or Population Stock Sections 101(a)(5)(A) and 101(a)(5)(D) of the MMPA allow the Secretary to authorize the incidental take of only “small numbers of marine mammals of a species or population.” Although in restricting the take to “small numbers” of marine mammals the Committee acknowledged that it was unable to offer a more precise formulation because the concept was not capable of being expressed in absolute numerical limits; it made clear its intent that the taking should be infrequent, unavoidable, or accidental. H.R. REP. NO. 228, 97th Cong., 1st Sess. 19 (1981). Therefore, it is obvious that the incidental take authorization is not intended to provide the Department of Defense with the ability to take unlimited numbers of marine mammals. In addition, the Committee noted that this requirement is separate and distinct from the required finding that the taking of small numbers of marine mammals will have a negligible impact on such species or stock. Id. The requirement that incidental take under these provisions be limited to “small numbers of marine mammals of a species or population stock” is an important and independent requirement that should continue to apply to all persons, including the Department of Defense. Deleting this requirement would allow increased and potentially unsustainable levels of injury or harassment. Although it is true that the bill retains the requirement that the Secretary find that the incidental taking have a negligible impact on the species or stock, these impacts are difficult to analyze, especially for marine mammal stocks for which little is known about their abundance or biology. Without the “small number” limitation, it may be difficult to evaluate the effects of injury or harassment on annual rates of recruitment and thereby establish sufficiently stringent quantitative standards for negligible impact; this creates the risk that adverse, possibly irreversible impacts will occur before they can be assessed. The additional requirement in the existing law, that the take be restricted to small numbers of marine mammals, ensures that that the biological consequence of that take will not hinder a marine mammal population’s ability to grow or recover. Deletion of Requirement That Activities Take Place Within a Specified Geographical Region Congress amended the MMPA in order to ensure that the specified activity and the specified region are narrowly identified so that the anticipated effect would be substantially similar. H.R. REP. NO. 228, 97th Cong., 1st Sess. 19 (1981). NMFS defines specified geographical region as “an area within which a specified activity is conducted and that has certain bio-geographic characteristics.” C.F.R. § 216.103. The Defense Department’s proposal would strike this requirement – despite its importance to environmental assessment under the Act, and its consonance with sound management of marine mammals. Restricting the activities to a specified region is in keeping with th
Dr. Peter Tyack
Rear Admiral Richard D. West, USN (Ret.)
Recently, the ocean science community has faced a major challenge -- litigation under the MMPA and other environmental laws has blocked important acoustic research projects and the use of sound in the sea for oceanographic work in general. The situation is disrupting science programs and is undermining the credibility of and support for important ocean research. CORE has four major recommendations. First, CORE supports changes to the MMPA recommended by the National Research Council (NRC) to clarify and strengthen the role and conduct of science related to marine mammals. Second, an expanded research program is necessary to reduce the current high levels of scientific uncertainty. Third, a timely and predictable administrative process must be established for obtaining MMPA permits and authorizations. Fourth, we must invest in outreach and education to address current public confusion regarding the effects of sound on marine mammals. Ocean Noise and Marine Mammals The ocean is, in large part, opaque to conventional observing techniques used for the atmosphere. Electromagnetic radiation, such as light and radio waves travel only a few hundred meters before being absorbed. Fortunately, the ocean is largely transparent to sound. Oceanographers depend on acoustic techniques to assess fish stocks, map the sea floor, communicate with underwater instrumentation, profile ocean currents and measure large-scale ocean temperature variability over great distances. Amending the MMPA Harassment Definition and Incidental Take Authorizations All three NRC committees (1994, 2000, 2003) are in agreement that the definition of harassment in the MMPA should be modified to focus on biologically significant disruption of behavior that is critical to survival and reproduction. CORE supports such a modification. Another key NRC recommendation is to remove the term, “small numbers” from MMPA section 101 provisions that deal with the authorization of incidental takings, which also requires that activities have a “negligible impact.” CORE supports this change to clarify that an authorization can be provided for research activities that might insignificantly harass large numbers of animals if there is a 'negligible impact' on the marine mammal populations involved. Scientific Research on Marine Mammals and Sound Perhaps the greatest challenge in addressing this issue is our current, very limited scientific understanding. Different sound frequencies and intensities have different effects on various species, and those effects change with location in the water column and characteristics of the sea floor. Increasing our scientific understanding would clarify and narrow the need to obtain permits and authorizations. A robust marine mammal research program is absolutely essential to addressing this issue. Establishing Timely and Less Burdensome Permitting and Regulatory Guidance The complex and lengthy permitting process under the MMPA has become a major impediment to conducting ocean research, hindering even the science to better understand the effect of human-generated sound on marine mammals. Scientists face lengthy delays and significant additional expense that threatens their ability to conduct research. CORE requests agency guidance or a legislative mechanism to clarify how the MMPA applies to a wide variety of routine sound sources. Such a clarification should provide user groups with clear direction that differentiates conditions of use that trigger MMPA requirements from those for which no permit or authorization would be required. Public outreach and education One major contributor to the current controversy is public confusion regarding the effects of sound on marine mammal populations. Many press stories report, but do not accurately explain, the link between marine sonar use and whale and dolphin strandings. The result is the misconception that any sound level is harmful -- flying in the face of scientific understanding. The marine science community must develop a public education and outreach program to provide better information to the press, environmental organizations, and the general public about the critical need to maintain basic acoustic research.
Mr. Charles Johnson
Madame Chair, I am Tomungnique, Executive Director of the Alaska Nanuuq Commission, which represents the polar bear villages in Alaska on matters concerning the conservation of nanuuq, the polar bear. However you can call me Charles Johnson, which I am called in English. IPCoMM, the Indigenous Peoples Council on Marine Mammals, was formed in 1994 to fight for co-management of marine mammals which coastal native people of Alaska heavily depend on for subsistence. IPCoMM also serves as a sub-committee of the Alaska Federation of Natives. Our dependence on marine mammals is more than for food and the making of handicrafts handicrafts, it is cultural, spiritual and essential to our well being. In 1994 we sometimes had an adversarial relationship with the management agencies. That has changed into a cooperative relationship as we have learned to trust each other. IPCoMM represents most if not all of the Alaska Native marine mammal subsistence commissions. During the last two plus years IPCoMM has worked diligently with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service and the Marine Mammal Commission to develop mutually agreeable language that meets all of our needs for the reauthorization of the MMPA. This language is contained in the Administration bill that we strongly support. The key points that we have worked on will allow us to work with the agencies to develop regulations that allow management before depletion and methods for enforcement of these regulations. Alaska Natives want our descendents until at least the seventh generation to enjoy the use of marine mammals as we have. The Native community in Alaska has expressed its strong support for the harvest management provisions of the Administration’s bill, as reflected in the 2002 AFN Resolution attached to my testimony. The language in the Administration bill also recognizes the political reality that Alaska Natives live in, but at the same time contains disclaimer language that is intended to neither add to, or take away from or change that political situation. We have developed efficient state wide organizations for the co-management of marine mammals for subsistence purposes. We recognize that single village agreements for co-management is unrealistic and have developed on our own these broad representative commissions. From the Alaska Nanuuq Commission perspective we would like to see a reorganization of management of those species that Alaska Natives use for subsistence purposes. It makes no sense for seals to be in NMFS when polar bears are in Fish and Wildlife Service. NMFS has stated that co-management is not one of their priorities because they are constantly dealing with crises’. Seals, in particular ice seals, which make up 90-95% of polar bear diets have little or no interaction with commercial fisheries. We feel it makes ecological sense for management of seals used for subsistence to be under Fish and Wildlife, where co-management would be efficient. Alaska Natives have also developed a trust with the major environmental organizations who support our efforts to conserve our marine resources for future generations. The progress we have made in working with them and the management agencies is reflected in the language regarding harvest management in the Administration bill. However the Administration bill took out the provisions allowing Alaska Natives to culturally exchange marine mammal products with Native peoples of Canada, Greenland and Russia as we have traditionally. Also taken out was the provision that allows Alaska Natives and Natives of Canada, Greenland and Russia to take in and out of Alaska our traditional clothing made of marine mammal products, We urge you to put back in these provisions. Also missing is the ban on the use of aircraft while hunting and a ban on the sale of ball bladders. We feel that these prohibitions are necessary for the conservation of marine mammals. We urge you to consider our efforts while you contemplate reauthorization of MMPA. THANK YOU and I will answer any questions.