[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
H.R. 2693, A BILL TO REAUTHORIZE THE MARINE MAMMAL PROTECTION ACT OF
1972
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
Thursday, July 24, 2003
__________
Serial No. 108-46
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana Eni F.H. Faleomavaega, American
Jim Saxton, New Jersey Samoa
Elton Gallegly, California Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland Frank Pallone, Jr., New Jersey
Ken Calvert, California Calvin M. Dooley, California
Scott McInnis, Colorado Donna M. Christensen, Virgin
Barbara Cubin, Wyoming Islands
George Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Jay Inslee, Washington
Carolina Grace F. Napolitano, California
Chris Cannon, Utah Tom Udall, New Mexico
John E. Peterson, Pennsylvania Mark Udall, Colorado
Jim Gibbons, Nevada, Anibal Acevedo-Vila, Puerto Rico
Vice Chairman Brad Carson, Oklahoma
Mark E. Souder, Indiana Raul M. Grijalva, Arizona
Greg Walden, Oregon Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona George Miller, California
Tom Osborne, Nebraska Edward J. Markey, Massachusetts
Jeff Flake, Arizona Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana Ciro D. Rodriguez, Texas
Rick Renzi, Arizona Joe Baca, California
Tom Cole, Oklahoma Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
WAYNE T. GILCHREST, Maryland, Chairman
FRANK PALLONE, JR., New Jersey, Ranking Democrat Member
Don Young, Alaska Eni F.H. Faleomavaega, American
W.J. ``Billy'' Tauzin, Louisiana Samoa
Jim Saxton, New Jersey Neil Abercrombie, Hawaii
Mark E. Souder, Indiana Solomon P. Ortiz, Texas
Walter B. Jones, Jr., North Ron Kind, Wisconsin
Carolina Madeleine Z. Bordallo, Guam
Randy Neugebauer, Texas Nick J. Rahall II, West Virginia,
Richard W. Pombo, California, ex ex officio
officio
------
C O N T E N T S
----------
Page
Hearing held on Thursday, July 24, 2003.......................... 1
Statement of Members:
Gilchrest, Hon. Wayne T., a Representative in Congress from
the State of Maryland...................................... 1
Prepared statement of.................................... 2
Pallone, Hon. Frank, Jr., a Representative in Congress from
the State of New Jersey.................................... 3
Prepared statement of.................................... 4
Rahall, Hon. Nick J. II, a Representative in Congress from
the State of West Virginia, Prepared statement of.......... 11
Statement of Witnesses:
Cottingham, David, Executive Director, Marine Mammal
Commission................................................. 29
Prepared statement of.................................... 30
Response to questions submitted for the record........... 154
Hayes, Robert G., General Counsel, Coastal Conservation
Association................................................ 69
Prepared statement of.................................... 71
Johnson, Charlie, Executive Director, Alaska Nanuuq
Commission................................................. 79
Prepared statement of.................................... 80
Jones, Marshall, Deputy Director, Fish and Wildlife Service,
U.S. Department of the Interior............................ 22
Prepared statement of.................................... 24
Response to questions submitted for the record........... 101
Lent, Dr. Rebecca, Deputy Assistant Administrator for
Fisheries, National Marine Fisheries Service, U.S.
Department of Commerce..................................... 13
Prepared statement of.................................... 15
Response to questions submitted for the record........... 110
Steuer, Karen, Senior Policy Advisor, National Environmental
Trust...................................................... 72
Prepared statement of.................................... 74
Response to questions submitted for the record........... 128
Tyack, Dr. Peter, Senior Scientist and Walter A. and Hope
Noyes Smith Chair, Department of Biology, Woods Hole
Oceanographic Institution.................................. 37
Prepared statement of.................................... 39
Response to questions submitted for the record........... 132
Wells, Dr. Randall, Conservation Biologist, Chicago
Zoological Society, Mote Marine Laboratory................. 81
Prepared statement of.................................... 83
Response to questions submitted for the record........... 141
Worcester, Peter F., Ph.D., Research Oceanographer, Scripps
Institution of Oceanography, University of California at
San Diego.................................................. 49
Prepared statement of.................................... 51
Response to questions submitted for the record........... 148
Zuanich, Robert, Board Member, United Fishermen of Alaska.... 88
Prepared statement of.................................... 89
Additional materials supplied:
Riedel, Monica, Executive Director and CEO, Alaska Native
Harbor Seal Commission, Statement submitted for the record. 98
LEGISLATIVE HEARING ON H.R. 2693, A BILL TO REAUTHORIZE THE MARINE
MAMMAL PROTECTION ACT OF 1972, AND FOR OTHER PURPOSES.
----------
Thursday, July 24, 2003
U.S. House of Representatives
Subcommittee on Fisheries Conservation, Wildlife and Oceans
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 1324, Longworth House Office Building, Hon. Wayne T.
Gilchrest [Chairman of the Subcommittee] presiding.
Present: Representatives Gilchrest, Pallone, Abercrombie,
and Kind.
Also present: Representative Pombo.
Mr. Gilchrest. The Subcommittee on Fisheries Conservation,
Wildlife and Oceans will come to order. We want to thank all of
you for coming this morning and we really look forward to the
testimony of each and every witness for us to try to find some
realistic consensus on the problems of the issue of marine
mammals.
STATEMENT OF HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MARYLAND
Mr. Gilchrest. Earlier this month I introduced H.R. 2693,
with Chairman Richard Pombo, to reauthorize the Marine Mammal
Protection Act. This bill is similar to H.R. 4781, which the
Subcommittee approved last Congress. There were a few
provisions that were not included in H.R. 4781: changes to the
definition of harassment and to the incidental take section;
language to authorize the disentanglement of marine mammals in
the stranding program; and modifications to the time lines in
the take reduction team process.
I think we have made good progress in H.R. 2693; however,
the bill is a starting point, a product to generate discussion.
To develop the language in the bill, I had meetings with
scientists and agency staff to better understand our current
state of knowledge, to hash out various terms proposed for the
definition of harassment, and to devise a process by which
scientific research can move forward in a timely manner without
unnecessary and significant delays. Most recently, yesterday in
fact, I met with representatives of some environmental groups
to discuss their thoughts on the bill's language.
What I have found most interesting in this process is how
everyone refers back to the National Research Council's
recommended definition of harassment. Everyone says their
definition is based on the NRC definition. I can say that H.R.
2693 used the NRC used the NRC definition as a template, but
has some modifications. The administration's definition is said
to have the intent of the NRC definition, but was reworked to
be defensible in court and structured to allow for better
enforcement. The environmental community also has its own
definition, which also modifies the NRC definition. There is
common ground in each of these proposals, the NRC definition.
We just need to word-smith more to get a compatible resolution.
And going through this process a little bit in the last few
days, I wish now I had paid much more attention to my seventh
grade English teacher's diagramming of what modifies what.
But I think we can work through this process to ensure that
the language is appropriate for the Navy, the language is
appropriate--and the process--the language is appropriate for
research scientists, and the process, and the language is
appropriate to meet all of the constituency problems that there
are out there in the oceans.
I think today we are going to look forward to your analysis
of the definitions of harassment, of incidental take, of the
process that people have to go through with NMFS in order to
get that permit to do what they need to do. And our intent
here, Mr. Pallone and myself, our intent is to ensure that--
like somebody told me just 2 days ago in this, in Congress, a
member: So, you want to save a whale and kill a soldier.
We want to make sure that the impression and the reality is
that the oceans will be better off, the ecosystem will improve,
marine mammals will be protected, and the military can train
its soldiers to defend America. But we also want to make sure
that a scientist that needs to fly an airplane over the North
Atlantic to observe right whales will not have a more difficult
time getting a permit to do that than the general understanding
that long lines are OK for the fishing industry. Now, I don't
want to downgrade long lining for the fishing industry. That is
a whole other issue that we will deal with in the Magnuson Act.
But to do research that is important for the preservation of
right whales and marine mammals, we have got to work for that
process and make it much more legitimate.
So I look forward to everyone's testimony today. And I
would like to yield to the gentleman from New Jersey, Mr.
Pallone.
[The prepared statement of Mr. Gilchrest follows:]
Statement of The Honorable Wayne T. Gilchrest, Chairman,
Subcommittee on Fisheries Conservation, Wildlife and Oceans
Good morning. Today, we will hear testimony on issues pertaining to
the reauthorization of the Marine Mammal Protection Act.
Earlier this month I introduced H.R. 2693,with Chairman Richard
Pombo, to reauthorize the MMPA. This bill is similar to H.R. 4781,
which the Subcommittee approved last Congress. There are a few
provisions that were not included in H.R. 4781: changes to the
definition of harassment and to the incidental take section; language
to authorize the disentanglement of marine mammals in the stranding
program; and modifications to the time-lines in the take reduction team
process.
I think we've made some good progress in H.R. 2693; however, the
bill is a starting point, a product to generate discussion. To develop
the language in the bill I had meetings with scientists and agency
staff to better understand our current state of knowledge, to hash out
various terms proposed for the definition of harassment, and to devise
a process by which scientific research can move forward in a timely
manner without significant delays. Most recently, yesterday in fact, I
met with representatives of some environmental groups to get their
thoughts on the bill language.
What I've found most interesting in this process is how everyone
refers back to the National Research Council's (NRC) recommended
definition of harassment. Everyone says their definition is based on
the NRC definition. I can say H.R. 2693 used the NRC definition as a
template, but has some modifications. The Administration's definition
is said to have the intent of the NRC definition, but was reworked to
be defensible in court and structured to allow for better enforcement.
The environmental community also has its own definition, which also
modifies the NRC definition. There is common ground in each of these
proposals, the NRC definition, we just need to word-smith some more to
get a compatible resolution.
I look forward to today's testimony. Each witness brings a slightly
different perspective to the table and differing views can lead to
productive and lively discussions.
I know recognize the Ranking Democrat, Mr. Pallone for his opening
statement.
______
STATEMENT OF HON. FRANK PALLONE, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman, for holding this
hearing on your legislation to reauthorize the Marine Mammal
Protection Act.
Much has been said recently about the MMPA, both inside and
outside this Committee. And while reasonable people can agree
to disagree about policy, there should be no doubt about
members of this Committee, whether Democrat or Republican, that
it is the sole jurisdiction of this Committee to reauthorize
and amend the MMPA.
And that is why I wanted to commend you, Mr. Chairman, for
forcefully reinforcing at Tuesday's meeting of the Conference
Committee to the Defense Authorization Bill of the proper
authority of this Committee regarding the MMPA. I can only hope
that the conferees will have been persuaded by arguments to
remove all provisions concerning the MMPA from the final
conference report.
And I know this is not on the same subject, but I see the
Chairman of the full Committee here. And I just want to say I
have witnessed several times over the last few weeks where you
have had to reinforce the Committee's jurisdiction. And I
appreciate the fact that you have been out there doing that as
well. I think it is very important.
Even within the Committee, changes to the definition of
harassment will continue to be a contentious item of
discussion. I do believe, however, that we now have the chance
to frame whatever changes should be made within the proper
context of an overall MMPA reauthorization.
As we consider how best to reauthorize the bill, be assured
that I will arrive at the table ready to work with you in a
true sense of comity and cooperation. And it is with this
spirit that I look at your bill, H.R. 2693, as an honest
starting point, but not a conclusion to our work. Also, realize
that I will vigorously oppose any attempt to weaken or walk
away from the fundamental protections afforded to marine
mammals under the act, for animals either in the wild or in
captivity.
As much as we should celebrate the fact that the MMPA has
prevented the outright extinction of many marine mammals, we
should not be blind to the compelling reality that many marine
mammal populations today face growing human threats from ship
strikes, acoustic impacts, marine debris and other land-based
pollutants. And in the end, our success at addressing these
threats will likely determine whether marine mammals can
maintain their vital roles in oceanic and coastal environments.
Thank you again, Mr. Chairman.
[The prepared statement of Mr. Pallone follows:]
Statement of The Honorable Frank Pallone, a Representative in Congress
from the State of New Jersey
Thank you, Mr. Chairman, for holding this hearing on your
legislation to reauthorize one of our Nation's most important statutes
protecting the ocean environment, the Marine Mammal Protection Act.
Much has been said recently about the MMPA, both inside and outside
of this Committee. And while reasonable people can agree to disagree
about policy preferences, there should be no light between members of
this Committee, whether they are Democrat or Republican, on the fact
that it is the sole jurisdiction of this Committee to reauthorize the
MMPA.
That is why I commend you, Mr. Chairman, for forcefully re-
informing the conference committee to the Defense Authorization bill at
yesterday's conference meeting of the proper authority of this
Committee regarding the MMPA. We can only hope that the conferees will
have been persuaded by your arguments to remove all provisions
concerning the MMPA from the final conference report.
Even within this Committee, changes to the definition of
``harassment'' will continue to be a contentious item of discussion. I
do believe, however, that we now have the chance to frame whatever
changes should be made within the proper context of an overall MMPA
reauthorization.
As we roll up our sleeves to sit down and consider how best to
reauthorize the MMPA, be assured that I will arrive at the table ready
to work with you in a true sense of comity and cooperation. And it is
with this spirit that I look at your bill, H.R. 2693, as an honest
starting point but not a conclusion to our work.
Also realize that I will vigorously oppose any attempt to weaken or
walk away from the fundamental protections afforded to marine mammals
under the Act, for animals either in the wild or in captivity.
As much as we should celebrate the fact that the MMPA has prevented
the outright extinction of many marine mammals, we should not be blind
to the compelling reality that many marine mammal populations today
face growing human threats from ship strikes, acoustic impacts, marine
debris and land-based pollutants.
In the end, our success at addressing these threats will likely
determine whether marine mammals remain a vibrant part of our ocean and
coastal environment. Thank you.
______
[Information submitted for the record by Mr. Pallone
follows:]
Statement submitted for the record on behalf of: Animal Protection
Institute; Cetacean Society International; Earth Island Institute;
International Wildlife Coalition; Society for Animal Protective
Legislation; The Fund for Animals; The Humane Society of the United
States; Whale and Dolphin Conservation Society; and World Society for
the Protection of Animals
The above signatory groups, together representing approximately 9
million members and constituents, thank the Subcommittee Chairman for
the opportunity to submit a statement for the record on the
reauthorization of the Marine Mammal Protection Act (MMPA). We
appreciate the opportunity to present these comments to the
Subcommittee. Our concerns relate to the sport hunting of polar bears
and the public display of marine mammals.
Sport Hunting of Polar Bears
The signatory groups oppose the provisions of Section 10 in H.R.
2693. In addition, we request that Congress maintain the prohibition on
the sport hunting of polar bears in Alaska and repeal Section 104(c)(5)
of the MMPA, which allows the import of polar bear trophies from
Canada. The MMPA prohibition against take is universal--the exemptions
are for purposes that serve the public good, with the sole exception of
the import of sport-hunted polar bear trophies from Canada, which is
for personal use. Section 104(c)(5) was added to the MMPA during the
1994 reauthorization. To allow exemptions for personal use is counter
to the spirit of this groundbreaking legislation.
Furthermore, the signatory groups believe commercial sport hunts
provide a dangerous incentive to over-exploit this vulnerable and
naturally rare species, as was historically the case. Sport hunting and
its negative impacts on polar bear populations were among the primary
reasons the five polar bear nations (Denmark [for Greenland], the
Russian Federation [then the USSR], Norway, Canada, and the U.S.)
originally negotiated and signed the 1973 Agreement on the Conservation
of Polar Bears.
To date, Canada continues to be the only country that allows the
sport hunting of polar bears under the 1973 Agreement. In 1994,
Congress passed an amendment, Section 104(c)(5), which allowed the
import into the U.S. of trophies legally taken in Canada. Many of the
signatory groups actively opposed this amendment during the 1994
reauthorization, in part because we believe the hunt in several
populations of Canadian polar bears was (and continues to be)
unsustainable. Allowing the import of trophies would (and now does)
provide a strong incentive for Canada to maintain or increase already
unsustainable quotas because more American hunters would seek to
purchase subsistence hunt tags from Canadian Inuit villages.
Validating our concerns, the U.S. Fish and Wildlife Service (FWS)
initially approved the M'Clintock Channel polar bear population for
imports under Section 104(c)(5). In early 2001, the agency published an
emergency rule reversing that approval because a recent study by the
Canadian authorities indicated that there were far fewer bears than
originally estimated in the M'Clintock population, making the quota not
only unsustainable, but actually an extirpation risk for the
population.
Some of the population data used to calculate this new population
estimate were apparently available to the Canadian authorities as early
as 1978. In addition, the population estimate was always rated as
``poor'' and even after the results of the first two years of a three-
year study (1998, 1999, and 2000) showed that there were almost
certainly far fewer bears in the population than previously estimated,
Canada did not change the quota until the study's final year of results
was analyzed. (The 1998/1999 hunting season, therefore, removed nearly
10% of the population and the unfulfilled quota was for more than 10%
of the population.) In short, managers could have and should have
foreseen the actual status of the population as early as 20 years ago
and certainly two years ago.
The signatory groups have always been critical of the potential for
mismanagement under Canada's management regime. The situation in
M'Clintock Channel is a classic example of a worst-case scenario under
this regime, which, inter alia, relies on population estimates that are
qualitatively rather than quantitatively characterized. The quota for
this population was driving the M'Clintock Channel bear population
inexorably toward extirpation for several years before managers
detected this trend.
It is impossible to know whether those populations that the FWS has
not approved for import but which are still subject to legal hunts
under Canadian law are experiencing similar negative impacts because of
hunting under Canada's management regime. If they are, this reflects on
Canada's entire management program. As for those six populations
currently with full FWS approval for import, their status is arguably
just as questionable, as they are being managed under the same regime.
Given how long M'Clintock Channel's dire situation escaped Canada's
notice, and given the uncertain quality of some of the population data
from the other approved populations, there is simply no assurance that
any polar bear population in Canada is being managed sustainably.
The signatory groups believe strongly that Section 104(c)(5) should
be repealed. Polar bears are uniquely unsuited to being sport-hunted.
Establishing accurate population estimates and life history parameters
upon which commercially-driven hunts can be sustainably based is
extremely difficult, given their remote and marginal habitat.
Public Display of Marine Mammals
In 1994, Congress amended the MMPA to eliminate certain aspects of
the law's applicability to marine mammals used for public display.
These changes weakened the law without justification, and there is no
basis for further changes to the law that would result in even less
protection for these animals. The relevant provisions within the MMPA
for public display fall under Sections 101 and 104. H.R. 2693 addresses
public display only once, in Section 11, the captive release
prohibition.
The MMPA provides for the public display of marine mammals by
special exemption. Because of the continued existence of trade (import/
export) in wild-caught and captive-born marine mammals between U.S.
facilities and foreign facilities, and the proliferation of unregulated
interactive programs (e.g., swim-with-the-dolphin programs; ``petting''
pools) in public display facilities worldwide, we believe Congress must
re-examine some of the provisions of the MMPA, and the implementing
regulations relating to the public display exemption.
Export Permits
The MMPA should be amended to restore the requirement for a permit
to export marine mammals for the purpose of public display. The 1994
Amendments removed this requirement from the law and currently a 15-day
notification to the National Marine Fisheries Service (NFMS) or FWS and
a determination, through a Letter of Comity, that the receiving
facility meets standards comparable to those required under the Animal
Welfare Act (AWA) and the MMPA are the sole requirements. In other
words, holders of captive marine mammals have the right to transport,
sell, export, purchase or transfer an interest (e.g., breeding loans)
without seeking authorization and without any public oversight. The
signatory groups have serious concerns regarding the ability of the
agencies under such a short notification regime and without public
input to ensure the well-being of marine mammals leaving this country
for foreign, and often substandard, facilities not under the
jurisdiction of U.S. law.
In the wild, marine mammals are under national jurisdiction in
domestic waters, while on the high seas they are considered a ``global
commons.'' We believe that their status should not change when removed
from the wild and kept in captive facilities, and we oppose the private
ownership of captive marine mammals. We believe that the public should
be treated as stakeholders and should have a key consultative role
concerning the destination, distribution, supervision and management of
these species. We believe that the public often holds critical
information that should be reviewed and evaluated prior to a transfer.
Therefore, we urge Congress to reinstate the export permit requirement,
which would provide for public notice and comment.
Comity and Comparability Provisions
The MMPA should confirm the requirement for a letter of comity from
a foreign facility's government regarding marine mammal protection
laws, and strengthen this provision by requiring on-site inspections.
The signatory groups are deeply concerned with the proliferation of
substandard captive display facilities around the world. We are not
satisfied that the requirement for a Letter of Comity from the
receiving nation provides adequate protection for marine mammals being
exported from the US. Because U.S. agencies must accept these letters
on their face, they are rendered almost meaningless. National agencies
all too frequently provide letters of comity with no substance
underlying them. The MMPA permit process, which includes public notice
and comment, as applied to export would allow a greater--and more
protective--degree of scrutiny of a receiving facility and the laws to
which it is subject. For example, certain Japanese facilities
participate in ``drive fisheries'' to capture dolphins. This practice
does not meet U.S. capture standards for humaneness and would not be
allowed under the MMPA. Any facility associated with this practice
should not be allowed to receive marine mammals from the US; whether a
facility acquires animals from drive fisheries may be information only
public comment could uncover.
As part of the comity process and under the 1994 Amendments,
foreign facilities must demonstrate that they meet standards that are
comparable to those under the AWA. The U.S. Department of Agriculture's
Animal and Plant Health Inspection Service (APHIS) has concluded that
facilities may demonstrate this solely through providing the agency
documentation and certified assurances, rather than through on-site
inspections. As a result, the determination of comparability is being
made by the receiving facility itself, through its expressions of
comity, and through the documentation it chooses to provide to APHIS,
which is a clear conflict of interest. Therefore, the MMPA should be
amended to clarify Section 104(c)(9) that the determination of
comparability must be made through first-hand knowledge, i.e., on-site
inspections, by the relevant U.S. agency. All facilities seeking to
acquire marine mammals from the U.S. should be pre-inspected by a
qualified U.S. official before animals are exported pursuant to any
MMPA authorization, including transfer pursuant to an existing permit
under section 104(c).
Marine Mammal Inventory Report
The MMPA should retain the requirement for captive display
facilities to maintain an inventory of marine mammals in their
collections, and should broaden the information reporting requirements
to include necropsy, injury and disease reports indicative of marine
mammals health status. The U.S. is one of the only countries in the
world with legislation requiring the maintenance of an inventory of
marine mammals held in captivity. Without an inventory, the status of
captive marine mammals can be impossible to determine, as it is the
only means for allowing outside scientific review of issues relating to
the health and survivorship of captive marine mammals. In addition,
with the increase in marine mammal interactive programs in the U.S. and
elsewhere, there is a need for the disclosure of information pertinent
to the health and welfare of marine mammals in these programs.
Information, including disease transmission and physical injuries
sustained by marine mammals in interactive programs, must be collected
in order for all stakeholders to evaluate the safety and value of these
programs.
Educational Programs
Section 104(c)(2)(A)(i) of the MMPA should be revised to provide
for the evaluation of education and conservation programs on a periodic
basis. Currently, educational standards within most public display
facilities are based on standards established and recommended by the
public display community itself. Because the effectiveness and
legitimacy of an educational program cannot be determined at its
inception and by its description on paper, and because the statute
requires only a ``professionally recognized'' educational or
conservation program, there is little to protect the precautionary
intent of the MMPA. According to information provided by NMFS, a permit
for the public display of cetaceans or pinnipeds has never been denied
or revoked on the grounds of insufficient educational value or content.
This blanket exemption is not monitored or enforced by any independent
public institution or regulatory agency.
We recommend that public display facilities that are granted an
exemption permit must be motivated to continually improve their
educational and conservation programs. There are currently no
requirements for updates to educational programs or facility plans once
a permit is granted. Periodic assessments should be required to ensure
that facilities do not stray from their original ``educational mission
statement'' in the course of their commercial development or expansion
into a public entertainment venue or amusement park, as many have. The
MMPA should require that the relevant Secretary approve public display
education and conservation programs, with periodic review of these
programs as they develop and evolve.
Authority over Captive Marine Mammals
Authority over captive marine mammals should be transferred from
APHIS in the Department of Agriculture to the same agencies (NMFS and
FWS) with jurisdiction over marine mammals in the wild. APHIS, under
the AWA, has not demonstrated that it can adequately ensure the humane
treatment and welfare of marine mammals used for the purpose of public
display. For example, after taking more than three years from the date
of reauthorization to finalize the regulations for the operation of
swim-with-the-dolphin programs, APHIS then suspended the regulations'
enforcement only six months later, in April 1999. To date, these
specialized and proliferating programs are to all intents and purposes
unregulated, beyond basic care and maintenance standards.
In addition, in a highly-publicized case in Puerto Rico, APHIS was
unable to remedy the inhumane treatment of seven polar bears held in
the Mexican-based Suarez Brothers Circus, revealing an agency unable to
fulfill the objectives of the MMPA. It was the FWS that finally rescued
these beleaguered animals from their untenable situation (six of the
seven are now doing well in U.S. zoos after confiscation--one
unfortunately died), citing violations of the MMPA. APHIS has limited
expertise among its staff in the biology and handling of marine
mammals. Its veterinary inspectors receive some training regarding the
specialized needs and requirements for these animals, but this training
is often inadequate. Facilities are allowed numerous opportunities to
correct violations, and in some instances, violations are never
corrected. The specialized biology, ecology, and captive maintenance
requirements of marine mammals, specifically recognized by Congress
when it passed the MMPA in 1972, overtax APHIS' staff. It would be
sensible for marine mammal species under the jurisdiction of NMFS (and
the FWS for polar bears, walruses, manatees and sea otters) when wild
to continue under the jurisdiction of NMFS/FWS when captive--these
wildlife species do not transform into livestock by virtue of entering
a tank or sea pen.
Traveling Shows
The MMPA should be amended to specifically prohibit the use of
marine mammals in traveling shows. The signatory groups support the
sections in the Administration's bill that prohibit traveling cetacean
shows and would like to see H.R. 2693 include this provision, but apply
it to all marine mammals. Circuses and itinerant performances cannot
maintain the highly specialized conditions necessary to ensure the
health and well-being of marine mammals. The high-profile case in
Puerto Rico involving the Suarez Brothers Circus, as noted above,
highlights that traveling shows featuring marine mammals inevitably
violate the spirit and very often the letter of the MMPA, which is
designed to conserve species and stocks and ensure humane treatment of
these animals.
``Petting'' Pools
The MMPA should be amended to prohibit interactive programs
involving the feeding of captive marine mammals. In the wild, feeding
marine mammals is prohibited by regulation, as this activity clearly
constitutes harassment. Feeding wild marine mammals (or any wild
predator) can result in the gross disruption of foraging behavior,
malnourished animals, injured animals through vandalism, nuisance
behavior in animals that have become habituated to handouts, and other
negative impacts. While public feeding of captive marine mammals in so-
called ``petting'' pool exhibits is undoubtedly less disruptive, it
still can lead to numerous problems, including obesity, the ingestion
of foreign objects (which can lead to injury and even death of the
animal), altered socialization patterns, and injury to the public
(e.g., being bitten). However, more to the point, feeding captive
marine mammals leads to a fundamental disconnect in the purported
educational mission of public display--the classic ``Do as I say, not
as I do'' syndrome. If feeding marine mammals in captivity is allowed,
it becomes extremely difficult and confusing for the public to recall
and follow the prohibition on feeding marine mammals in the wild. The
signatory groups strongly urge Congress to amend the MMPA to prohibit
``petting'' pools.
Capture from the Wild
The MMPA should be amended to prohibit the capture of marine
mammals from the wild for use in public display facilities. Captive
populations of marine mammals have been maintained and grown through
captive breeding, imports, and the retention of non-releasable stranded
animals. The U.S. public display industry frequently tells the public
that it has not captured any cetaceans from the wild since 1993. Given
this successful maintenance of captive populations without removing
animals from the wild, it is entirely unnecessary for any marine
mammals to be captured in the wild for the purposes of public display.
Conclusion
The signatory groups once again thank the Subcommittee Chair for
allowing our special concerns regarding the sport hunting of polar
bears and the public display of marine mammals to be submitted for the
record on the reauthorization of the MMPA. We urge Congress to consider
our views on these two issues, as we seek to bring all marine mammals
once again within the truly protective and precautionary embrace of the
MMPA.
______
April 24, 1997
U.S. Fish and Wildlife Service
Office of Management Authority
4401 N. Fairfax Dr., Room 430
Arlington, VA 22203
TRANSMITTED BY FACSIMILE: 703/358-2281
RE: 62 FR 14437, Notice of Receipt of Applications for Permit
On behalf of the more than 4.5 million members and constituents of
The Humane Society of the United States (HSUS), I am submitting these
comments regarding 27 applications received by the U.S. Fish and
Wildlife Service (the Service) for import permits for sport-hunted
polar bear trophies from the Northwest Territories, Canada.
For the record, The HSUS strongly objects to the Service's
consideration of these permit applications. We believe that the
Service's final rule is in error and that three of the four statutory
requirements cannot be met (i.e., Canada's program does not comply with
the International Agreement on the Conservation of Polar Bears;
Canada's program is not scientifically sound; and polar bear trophy
imports will contribute to the illegal trade in polar bear parts--
please see our comments of March 6, August 31, and November 6, 1995).
We are also aware that Representative Don Young (R-AK) has introduced
House Joint Resolution 59 seeking to overturn the Service's final rule
and that a hearing on this matter will be held on April 30, 1997.
Finally, one or more of several parties may initiate legal action in
the near future to overturn the Service's final rule. Therefore, given
the current uncertain status of the final rule, we believe it is
inappropriate for the Service to consider these permit applications at
this time.
However, if the Service processes these permits regardless of the
uncertain status of the final rule, my comments are as follows: To my
understanding, Baffin Bay and the Gulf of Boothia populations have been
deferred for approval by the Service. Therefore, the permit
applications of Robert Kuykendall (Baffin Bay) and Lee Adam (Gulf of
Boothia) should be denied on their face. In addition, Mr. Adam's
application fails to provide the size of the tanned hide, information
he must provide to answer question #9 on page 2 of the application form
(without this information, it is impossible to determine if the male
bear killed by Mr. Adam meets the minimum size restriction to avoid
having to provide documentation that the bear was not part of a family
group). I also note that Mr. Adam has failed to answer question #6 on
page 2 of the application form, although this information is provided
in the attached Northwest Territories Wildlife Export Permit #7728.
After examining the remaining 24 applications (apparently one
application was returned to the applicant), I find that more than half
(14), for one reason or another, are incomplete or inaccurate. It may
be that these applicants have since provided information to the Service
that completes their applications, but it concerns me that the
applications were published in the Federal Register prior to the
applicants providing complete and accurate applications to the Service.
Also, since the applications were distributed to the public in this
condition, it leaves the public in the position of having incomplete
paperwork upon which to base its comments (for example, I will not be
able to evaluate whether the documentation eventually provided by
several applicants [regarding whether a female bear or male bear under
six feet was part of a family group] is acceptable).
In alphabetical order:
LHorst Baier--LDid not answer question #8, page 1
LLarry Bennett--LDid not complete question #8, page 1 (did not provide
license or permit number)
LDid not answer question #10, page 1
LDid not answer question #9, page 2 (i.e., did not provide size of
tanned hide in question #3, page 2)
LJerome Bofferding--LDid not indicate a designated port for wildlife in
question #6, page 1 (although did indicate Designated Port
Exception permit number)
LDid not answer question #9, page 2 (i.e., did not provide size of
hide in question #3, page 2)--the Service's attached notice to this
effect expires on approximately May 10
LDan Fox--LDid not answer question #8, page 1
LDid not answer question #9, page 2 (i.e., did not provide size of
tanned hide in question #3, page 2)
LJohn Hoyer--LProvided incorrect information in question #7, page 1
(gave Northwest Territories hunting licence number, rather than
Federal fish and wildlife license or permit number)
LDid not complete question #8, page 1 (did not provide license or
permit number)
LDid not answer question #9, page 2 (i.e., did not provide
documentation that the female bear killed was not part of a family
group)--the Service's attached notice to this effect expires on
approximately May 10
LJerry Imperial--LProvided invalid information in question #10, page 1
(date provided does not correspond to question)
LDid not answer question #9, page 2 (i.e., did not provide size of
tanned hide in question #3, page 2)
LCraig Leerberg--LDid not answer question #8, page 1
LDid not answer question #8, page 2 (the Service's notice, which
expires approximately May 10, incorrectly requested a response to
question #9, page 2)--this female bear was hunted before January 1,
1986 (the applicant did not provide the month in question #5, although
the attached hunting license indicated the hunt may have occurred in
March 1983)
LJack Leuenberger--LDid not answer question #10, page 1
LDid not answer question #9, page 2 (i.e., did not provide
documentation that the female bear killed was not part of a family
group)--the Service's attached notice to this effect expires on
approximately May 10
LLee Lipscomb--LProvided an incorrect answer (``N/A'') to question #9,
page 2 (i.e., did not provide documentation that the female
bear killed was not part of a family group)--the Service's
attached notice to this effect expires on approximately May 10
LTorry Lofgreen--LDid not complete question #8, page 1 (did not provide
license or permit number)
LDid not answer question #9, page 2 (i.e., did not provide size of
hide in question #3, page 2)
LPerry Segura--LProvided incorrect information in question #7, page 1
(gave Northwest Territories hunting licence number, rather than
Federal fish and wildlife license or permit number)
LCarl Strawberry--LDid not indicate a designated port for wildlife in
question #6, page 1 (provided invalid information)
LRobert Van Horn--LDid not indicate a designated port for wildlife in
question #6, page 1
LCharles Whitlow--LDid not answer question #9, page 2 (i.e., did not
provide size of tanned hide in question #3, page 2) Of the
remaining 10 applications, no obvious errors or incomplete
information were noted.
I would like to note that five of the applications that failed to
answer question #9, page 2 did not have Service notices to that effect
attached to them. This appears to be an oversight on the Service's
part. Failure of the Service to provide these notices means either that
these applications will be processed exceptionally slowly or that they
will be improperly processed and possibly approved without ever having
provided this necessary information.
I would also like to note that of the three applications that
provided the requested documentation regarding female bears (in
response to either questions #8 or #9 on page 2), it is literally
impossible to evaluate this documentation properly. In each case, an
official of the Northwest Territories certified that the female bear
was alone, but whether this certification was based on the certifying
official's (or other official's) direct observation or the word of the
applicant or guide is unknown. This is a point The HSUS made in its
August 31, 1995 comments to the Service on the proposed rule; this
method of certification is apparently based entirely (and
inappropriately) on the honor system.
Again, The HSUS feels the Service published 16 of these
applications in the Federal Register inappropriately, either because
they referred to trophies taken from deferred populations or because
they provided inaccurate, incorrect, or incomplete information. We
strongly recommend that permit applications not be published in the
Federal Register until they are complete and accurate, so that only
complete and accurate applications are provided to the public for
comment.
Once again, The HSUS wishes to express our objection to the
processing of these permit applications at this time. Under no
circumstances should the applications of R. Kuykendall and L. Adam be
approved.
Thank you for the opportunity to comment on this matter.
Sincerely,
Naomi A. Rose, Ph.D.
Marine Mammal Scientist
Wildlife and Habitat Protection
______
May 12, 1997
U.S. Fish and Wildlife Service
Office of Management Authority
4401 N. Fairfax Dr., Room 430
Arlington, VA 22203
Attn: Lynn Noonan
TRANSMITTED BY FACSIMILE: 703/358-2281
RE: 62 FR 14437, Notice of Receipt of Applications for Permit 62 FR
17199, Notice of Receipt of Applications for Permit
Dear Ms. Noonan:
Thank you for forwarding the supplemental information provided to
your office by several permit applicants pursuant to 62 FR 14437. Thank
you also for the seven permit applications pursuant to 62 FR 17199. I
believe I am one day late with these comments (in both cases), but
nevertheless I am submitting them for the record.
My only comment concerning the supplemental information refers to
the information provided by Mr. Craig Leerberg, regarding his 1983
female polar bear trophy. He originally failed to respond to questions
#8 and #9 on page 2 (I mistakenly commented on April 24 that he had
only failed to respond to question #8--as your office correctly noted,
he also failed to respond to question #9). His subsequent submission, a
letter to you on his personal stationery, stating that the female bear
was hunted in March 1983 and was alone and not nursing, is not
sufficient to satisfy the regulations.
While his hunting license date-of-issue is arguably sufficient to
satisfy the documentation requirements of question #8 (since it was
issued on March 1, 1983 and expired on June 30, 1983, the bear was not
shot in the months of October, November, or December of that year), he
has not provided any independent verification that the bear was not a
part of a family group. His personal statement that the bear was alone
and not nursing is not sufficient. His statement that ``[whether the
bear was part of a family group or not] was evidently not an issue with
[the Game Department in Inuvik]'' is completely irrelevant to the
current requirements under the regulations. Mr. Leerberg must make an
effort, as have several others, to acquire any records from the Inuvik
officials that in some way indicate that this bear was alone when shot.
He must also get their concurrence that the bear was not nursing; his
statement alone does not satisfy the regulations.
For the record, this is a perfect example of why the ``honor
system'' is not adequate to prevent violations of the regulations. I am
in no position to judge Mr. Leerberg's veracity regarding the
statements in his April 3 letter to you and neither are you. It is
troublesome enough that certification from Canadian officials may be
based merely on the word of the hunter and/or the hunt guide; it is
certainly unacceptable for the hunter to bypass certification
altogether merely because he ``[does] not recall'' an official
recording the circumstances of his hunt.
As for the permit applications pursuant to 62 FR 17199, I have no
comments regarding the six applications that were complete. I await
receipt of the supplemental information to be provided by Mr. David
Anaman, regarding certification that the female bear he killed was not
part of a family group.
Again, I apologize for the tardiness of these comments and I hope
your office will still consider them. Thank you for the opportunity to
comment on this matter.
Sincerely,
Naomi A. Rose, Ph.D.
Marine Mammal Scientist
Wildlife and Habitat Protection
______
Mr. Gilchrest. Thank you, Mr. Pallone.
The Chairman of the full Committee, Mr. Pombo.
Mr. Pallone. Mr. Chairman, could I ask that the statement
of our Ranking Member for the full Committee, Mr. Rahall, be
submitted at this time? I ask unanimous consent.
Mr. Gilchrest. Without objection.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, II, Ranking Democrat,
Committee on Resources
Mr. Chairman, long gone are the days of the leviathan portrayed in
Melville's Moby Dick, when whole towns were built on the wealth that
whale oil could provide. Long gone are the days when it was morally
justifiable to hunt a species like the blue whale to within a blink of
extinction.
Today, humankind's relationship with the ocean is defined by the
sense of wonder that whales, dolphins, and other marine mammals inspire
and by a conviction to protect this natural biodiversity.
When the Marine Mammal Protection Act (MMPA) was enacted in 1972,
it was with this vision of protection and precaution. It was to right
the ecological wrongs wreaked by generations of wanton slaughter driven
by our collective greed for the products that marine mammals supplied.
It was to provide a moratorium on the taking of marine mammals, in
order to maintain and rebuild healthy populations of whales and
dolphins, seals and sea lions, and other marine mammals, except in
certain very specific and tightly regulated instances.
To a noteworthy extent, protection and precaution have paid off. We
should celebrate that some marine mammal species have recovered to
estimated pre-harvest levels. But we should not be lulled into a false
sense of complacency, allowing Flipper and Keiko to survive only in
animation.
Many populations, such as North Atlantic right whales and bowhead
whales in the Arctic, remain endangered. We also cannot ignore that the
full breadth and intensity of human activity in the ocean, including
shipping, oil and gas exploration, and military activity, has a
profound effect on marine mammals, even if we do not seek to kill them
outright.
Our nation is at a critical crossroads of how we define our
relationship to the ocean. The report just released by the Pew
Commission in June challenges the United States to develop a new ocean
ethic and to treat the ocean as a public domain that we, as a Congress
and as a people, hold in trust for future generations. How we re-define
our relationship to marine mammals is central to establishing this new
ethic.
The reauthorization of the MMPA provides us the immediate
opportunity to preserve and uphold an important precedent. Hundreds of
years of harvesting the ocean have taught us valuable lessons, one
being that the ocean is not provided solely for human use, or that
marine resources are available in infinite abundance. We should cast
off and discard permanently the idea of consumptive use of marine
mammals, except in legitimate circumstances for native subsistence.
We need an MMPA that embraces the success of precautionary
protection and links it with our enhanced understanding of the ocean
environment and the magnitude of our disruption of ocean ecosystems.
We can accomplish this by identifying and mitigating a wider range
of human activities in the oceans that can harm marine mammals. We
should critically evaluate activities such as shipping, which
contribute to the overall level of noise in the ocean and often steer a
collision course through pods of endangered whales.
We need to understand and better control how pollution from land
ends up in the ocean and accumulates in the tissues of marine mammals.
We must fund basic research on marine mammals from sources other than
the Navy, to enhance our understanding of marine mammal abundance,
biology, and ecology and to apply the best available science to our
management decisions.
We need to bolster our support for the Marine Mammal Commission and
for programs such as the Stranding and Entanglement Response Network,
to ensure that emerging threats to marine mammals can be dealt with
expeditiously.
Unfortunately, H.R. 2693, the bill before the Fisheries
Conservation, Wildlife, and Oceans Subcommittee today, would undercut
the MMPA's broad mandate for protection. It would allow the Secretary
alone to grant a general authority for a range of unspecified
``activities'' that could harass, injure, or even kill a marine mammal.
It would also revise the definition of ``harassment'' to make it less
protective of marine mammals in instances that might cause direct
injury.
I am certain that Congress can unite in improving the MMPA. All of
America loves Flipper and Keiko. Whale watching brings $1 billion to
the global economy each year, and is worth hundreds of millions of
dollars annually in the United States. Sea World alone nets $12 million
each year.
Rather than decimating whale stocks as we did in the 1800s to
satisfy our greed for their oil and fur, we should strive to maintain
healthy populations both in the wild and in captivity to benefit both
the animals themselves and our economy as a whole.
Some critics might argue for the ``sustainable use'' of marine
mammals, a concept enshrined for fisheries under the Magnuson-Stevens
Fisheries Conservation and Management Act.
But rather than consumptive use at all, I urge a true ``sustainable
use'' of marine mammals through whale watching, carefully regulated
public display, enhanced public education and outreach, and robust
scientific inquiry that would best serve the long-term interests of
both marine mammals and humankind.
We should not demote majestic and intelligent marine mammals to the
status of cold-blooded fish. Few fish have been both the stars of TV
shows and comrades in combat to U.S. soldiers in foreign countries.
The Marine Mammal Protection Act has always recognized that
important fundamental distinction. It will be our challenge to keep
that perspective foremost in our thoughts as we look to reauthorize and
modernize this landmark environmental statute.
Thank you.
______
Mr. Gilchrest. The witnesses this morning will be Dr.
Rebecca Lent, Deputy Assistant Administrator for Fisheries,
National Marine Fisheries Service; Mr. Marshall Jones, Deputy
Director, U.S. Fish and Wildlife Service--we may have some
questions to you about Nutria. I am not sure if you are going
to deal with that issue. [Laughter.] Make sure all the funding
goes to where it is supposed to go. The intent of Congress
seems to disappear once the bill leaves the Hill.
Mr. David Cottingham, Executive Director, Marine Mammal
Commission, welcome. And Dr. Peter Tyack, Conservation
Biologist, Woods Hole Oceanographic Institution in
Massachusetts. Thank you, sir. And Dr. Peter Worcester--that is
just like the county in Maryland. Dr. Peter Worcester,
Oceanographic Researcher, Scripps Institution of Oceanography,
University of California at San Diego. Welcome.
We look forward to your testimony. Dr. Lent, you may begin.
STATEMENT OF DR. REBECCA LENT, DEPUTY ASSISTANT ADMINISTRATOR
FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE
Dr. Lent. Thank you, Mr. Chairman, members of he
Subcommittee. I want to commend you and your staff for your
hard work and dedication to the improvement of marine mammal
conservation and management, as evidenced in H.R. 2693. My
testimony today will focus on H.R. 2693 and the
administration's MMPA bill.
I also want to focus right up front here on an issue that
has arisen to the forefront of the reauthorization discussion,
and that is scientific research permits.
NOAA Fisheries issues scientific research permits to
scientists who want to conduct marine mammal and endangered
species research. Because the topic of permits can be quite
confusing, I want to point out two distinctions. First, there
is a difference between permits that are for activities
directed at marine mammals and incidental take authorizations
for activities that may incidentally or indirectly affect
marine mammals, such as seismic exploration or naval training
exercises.
Second of all, there is an important difference between
scientific research permits that pertain to marine mammals that
are not listed as threatened or endangered under the Endangered
Species Act, or ESA, and those that are under ESA. Permits and
general authorizations that deal with non-ESA-listed marine
mammals, such as bottlenose dolphins, are almost always issued
in a timely manner and generally are not controversial. We
strongly feel that these types of permits do not present
problems that need to be addressed during reauthorization.
The challenges we face in recent years with issuing
scientific permits are related to endangered marine mammals,
such as right whales and Stellar sea lions. For ESA-listed
species, we have to meet our statutory obligations under ESA by
doing Section 7 analyses, or biological opinions. In addition,
we have to look at the potential impacts of the research under
the National Environmental Policy Act, or NEPA. In the future,
we plan to develop programmatic NEPA and ESA documents which we
hope will help front-load these processes and give us some more
streamlined permitting process. But we don't see any need to
make changes on the MMPA scientific research permitting
process, because it is working well.
Let me turn to the definition of harassment. We are pleased
that H.R. 2693 recognizes the need to clarify that definition
and to focus on the impacts that are biologically significant.
We have had difficulties at NOAA Fisheries in interpreting,
implementing, and enforcing the current harassment definition,
and we are seeking to address those problems in our bill. We
support many of the changes in H.R. 2693, such as deleting the
term ``pursuit, torment, or annoyance,'' and the clarification
that harassment can be any act; and also, addressing activities
that are directed at marine mammals.
Regarding the changes that H.R. 2693 would make to Level A
harassment, we would like to work with you to get clarification
on the term ``probability to injure.'' We are concerned that
``probability'' may imply that a particular outcome is more
likely to occur than not. This might create too high of a
standard for--a threshold to get Level A harassment, and make
it difficult for us to regulate certain acts.
Again, we support the intent of the bill's proposed changes
to the current definition of Level B harassment, but we note
that we are concerned about ``potential to disturb.''
Regarding incidental--
Mr. Gilchrest. Dr. Lent, did you say you were OK with Level
B harassment in H.R. 2693?
Dr. Lent. We support the intent of the bill's proposed
changes to the current definition of Level B harassment. We
appreciate the fact, Mr. Chairman, that you started off by
saying this is a starting point and issues for discussion. We
look forward to working with you on that.
Incidental takings of marine mammals, we support H.R.
2693's deletion of the terms ``small numbers'' and ``specified
geographic region.'' It is not going to change the applicant's
requirements to show that their activities are having a
negligible impact, and it won't change our evaluation of
applications based on the biological significance of the
action.
Regarding take reduction teams and take reduction plans, we
support a number of the marine mammal bycatch provisions in
H.R. 2693, including the expansion of Section 118 requirements
to allow consideration of all important fishery-related
consequences of marine mammal bycatch, or sources of marine
bycatch.
We do have concerns about provisions that might limit our
authority to monitor bycatch in certain fisheries. We also are
concerned about mandatory Federal Government representation on
take reduction teams, and potentially requiring reconvening
take reduction teams after the plan development is complete.
There is more detail in my written testimony, but I want to
note that we also support--NOAA also supports a number of other
provisions in H.R. 2693, including those that deal with
prohibiting the release of captive marine mammals without prior
authorization, language to improve marine mammal stranding and
entanglement response. However, we do have concerns about the
Section 14 language regarding the general authorization
process. And again, we would appreciate an opportunity to work
with you on this language.
Additionally, there are some provisions in the
administration's bill that were not addressed in H.R. 2693. We
want to draw your attention to those quickly, including other
marine mammal bycatch reduction initiatives, improving harvest
management agreements, enhancing enforcement, dealing with ship
strikes of large whales, prohibiting traveling cetacean
exhibits, and correcting inconsistencies in the export
prohibition language.
In closing, I would like to note that H.R. 2693 takes many
important steps toward improving the policies that cover marine
mammal conservation, and we look forward to working with you.
Thank you, Mr. Chairman.
[The prepared statement of Ms. Lent follows:]
Statement of Dr. Rebecca Lent, Deputy Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
Mr. Chairman and Members of the Subcommittee, I am Dr. Rebecca
Lent, Deputy Assistant Administrator for Regulatory Programs at the
National Oceanic and Atmospheric Administration (NOAA). Thank you for
inviting me to testify before you today on H.R. 2693 and other Marine
Mammal Protection Act (MMPA) reauthorization issues. Additionally,
special thanks to you and your staff for your hard work and dedication
to the improvement of marine mammal conservation and management
policies in the development of H.R. 2693.
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 Administration strongly supports the conservation and
management principles embodied in the MMPA and the need to reauthorize
this important legislation. As you know, 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. My testimony today includes NOAA Fisheries' views on H.R.
2693, as well as a description of some elements of the Administration's
MMPA reauthorization bill that we hope the Subcommittee will take into
further consideration. I would like to begin my testimony today,
however, by discussing an emerging issue that has recently risen to the
forefront of the MMPA reauthorization discussion--that of scientific
research permits and the process of issuing those permits.
Scientific Research Permitting Process
NOAA Fisheries is a science-based agency. We conduct marine mammal
research and stock assessments at all of our regional science centers
and we help fund and support marine mammal research projects conducted
by many scientists outside the agency. Our Marine Mammal Permits,
Conservation and Education Division is part of our headquarters Office
of Protected Resources. This Division issues scientific research
permits to conduct marine mammal and endangered species research by all
scientists.
There is a distinction between permits that are for activities
directed at marine mammals and incidental take authorizations for
activities that may indirectly or incidentally affect marine mammals
through activities such as seismic exploration or naval training
exercises. Sections 101 and 104 of the MMPA lay out different
authorization processes for activities involving incidental and
directed impacts. It is logical to handle these processes separately,
since the intent and type of impact associated with incidental vs.
directed activities is different. Activities that are directed at
marine mammals involving scientific research, for instance, by their
nature are repetitive. Incidental activities involve indirect,
unavoidable impacts on marine mammals that often must be looked at on a
different scale. We are also working to improve the information
underlying such permits. For example, we have held several meetings
with stakeholders to ascertain how marine mammal stock assessments can
be improved to meet regulatory compliance needs.
It is also very important to recognize the distinction between
scientific research permits that pertain to marine mammals that are not
listed as threatened or endangered under the Endangered Species Act
(ESA) and those permits that address ESA-listed species. Permits and
General Authorizations that deal with non-ESA-listed marine mammals,
such as bottlenose dolphins, are almost always issued in a timely
manner and are generally not controversial. We feel strongly that these
permits present no problems that need to be addressed during
reauthorization.
The challenges that we have had in recent years with issuing
scientific research permits are related to endangered marine mammals,
such as right whales, other large whales, and Steller sea lions. For
these ESA-listed species, we need to meet our statutory obligations
under the ESA by conducting ESA Section 7 analyses. In addition, the
potential impacts of the research are analyzed under the National
Environmental Policy Act (NEPA). While we conduct NEPA analyses for
non-listed species, the analyses and corresponding documents are more
complex when the species in question is listed under the Endangered
Species Act. In order to consider the cumulative and synergistic
impacts of all the research conducted on these species, it might be
necessary to prepare an Environmental Assessment or full Environmental
Impact Statement. This has presented the agency with significant
challenges.
For example, there has been much criticism of the time it has taken
to issue a right whale research permit for the New England Aquarium.
NOAA Fisheries must review research permits involving right whales with
particular scrutiny because these animals are critically endangered. In
addition to the New England Aquarium's proposed research, there have
been a number of other right whale research proposals that have been
submitted to NOAA Fisheries, some of which contained a number of
controversial research activities. The Permits Division staff have been
working closely with NOAA Fisheries marine mammal scientists and with
the Marine Mammal Commission to determine how best to address these
issues. The intent is to complete all the necessary analyses under
Section 7 and NEPA, so that permit decisions can be made in advance of
the upcoming fall/winter field season in the Atlantic.
In the interim, NOAA Fisheries has made arrangements to accommodate
most of the New England Aquarium's research in U.S. waters under
existing scientific research permits such that field opportunities are
not lost. In addition, this and other research critical to the
protection of right whales, including disentanglement efforts and
aerial surveys needed for the Early Warning System, have been
continuing under existing permits.
In addition, on more than one occasion, we have been able to
expedite scientific research applications for ESA-listed species of
marine mammals on very short notice when valuable research
opportunities would otherwise be lost. For instance, we recently
processed an application for a study involving acoustic research on
endangered sperm whales within 42 days (including the statutorily
mandated 30-day public comment period) of receipt of the complete
application, well under the typical 225-day timeframe allotted for
processing this type of permit.
In summary, we face significant challenges in addressing endangered
marine mammal research permits because of the sometimes complex and
time-consuming ESA and NEPA requirements and the importance of the
analysis when the research, which sometimes involves direct contact
with the animal, is conducted on highly endangered animals. We attempt
to address these requirements as thoroughly as possible to ensure that
we can use information from the analyses as the basis for sound
decision-making, as well as to prevent legal vulnerabilities that may
further delay the permitting process. Additionally, addressing these
requirements enables us to integrate public input into our analyses. In
the future, we plan to develop programmatic NEPA and ESA documents that
would help front-load these processes, and allow a much more
streamlined permitting process. However, we see no need to make changes
in the MMPA scientific research permitting process, because that
process works well.
NOAA Fisheries has been criticized over the time it takes to
process requests for authorizations to take marine mammals incidental
to activities they are undertaking. We believe, however, that we have a
good record of working with a varied group of interests, including
seismic operators conducting oil and gas-related activities, military
agencies, state transportation agencies, and others, to authorize
incidental taking, when they come to us early in their project
planning. The Act establishes various standards that must be met, which
require a variety of findings to be made. When the marine mammals to be
taken are listed under the Endangered Species Act, that law applies as
well. In each case, we initiate public review and some level of NEPA
analysis. For projects that are likely to take marine mammals, we
encourage potential applicants to inquire early about our procedures
for authorizing incidental takings as they are planning these projects.
H.R. 2693
Definition of Harassment
NOAA Fisheries is pleased that the need to clarify the definition
of harassment has been addressed in H.R. 2693. We have experienced
difficulties interpreting, implementing, and enforcing the current
harassment definition and have sought to address these problems in the
Administration's reauthorization bill in a similar manner as H.R. 2693.
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.
Additionally, these terms in the current definition establish a
difficult two-tiered standard that the agency must meet before it can
prosecute anyone who takes a marine mammal by harassment. First, the
agency must prove that an individual act was one of ``pursuit, torment,
or annoyance.'' Then, the agency must prove that the act has the
potential either to injure or disturb a marine mammal. We support H.R.
2693's deletion of the terms ``pursuit, torment, or annoyance'' in the
current definition, eliminating the two-tiered standard. We also
support the clarification that harassment can be ``any act.'' The
Administration bill proposes the same change, and we feel this will aid
enforcement of the harassment standard.
We support H.R. 2693's inclusion of the second tier of the Level B
harassment definition similar to the Administration's reauthorization
bill, which makes explicit that activities that are directed at
individual or groups of marine mammals that are likely to disrupt
important marine mammal behaviors constitute harassment. Members of the
public and commercial operators who intentionally interact with wild
marine mammals either by boat, in the water, or on land can disturb the
natural behavior of the animals. They can 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.
We also conceptually support the proposed changes H.R. 2693 would
make to Level A and B harassment. The current definition of harassment
is broad and lacks precision, thereby failing 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. With regard to the changes H.R. 2693 would make to
Level A harassment, we ask for clarification of the intent of the term
``probability to injure.'' Specifically, we are concerned that since
``probability'' often implies that a particular outcome is more likely
to occur than not, this standard may create too high a threshold for an
act to constitute Level A harassment and make it difficult for the
agency to regulate some acts that may have important negative impacts
on marine mammals. We support the intent of the bill's proposed changes
to the current definition of Level B harassment. These changes will
help NOAA Fisheries and the regulated community focus on activities
that result in biologically significant, harmful effects rather than
those activities that result in de minimus impacts on marine mammals.
Overall, the proposed definition of harassment contained in H.R. 2693
is similar in intent to the one in the Administration's proposal. Both
proposed definitions will result in more meaningful protections for
marine mammals and apply a clearer standard of harassment to the entire
regulatory community.
We are concerned about the ``potential to disturb'' threshold set
forth in the second clause of the proposed harassment definition. The
agencies that developed the Administration's proposed definition
rejected this language as being overly broad, inasmuch as it would
include even a very remote possibility that disturbance might occur. We
believe that the standard included in the Administration's proposal,
``disturbs or is likely to disturb,'' provides a more appropriate
delimitation concerning what activities should be covered under this
part of the harassment definition.
Incidental Takings of Marine Mammals
H.R. 2693 would amend several parts of the current legislative
requirements that authorize incidental take (Section 101(a)(5) of the
MMPA). Incidental takes are those that are unintentional and may occur
during otherwise lawful activities.
Under the present scheme, NOAA Fisheries is directed to authorize
the takes of small numbers of marine mammals if the takings will have
no more than a negligible impact on those marine mammal species or
stocks, and will not have an unmitigable adverse impact on subsistence
harvests of these species. Through regulation, NOAA Fisheries has
defined ``negligible impact'' as ``an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.''
H.R. 2693 would delete the ``small numbers'' standard in Section
101(a)(5) of the MMPA and would no longer require that activities
authorized under this section be limited to a ``specified geographic
region.'' These proposed amendments do not change the applicant's
requirement of having to show that their activities are having a
negligible impact on the marine mammal species and populations before
they can be authorized. Nor do they change the requirement for the
applicant to demonstrate that their activities will not have an
unmitigable adverse impact on the availability of such species or
stocks for subsistence uses pursuant to the MMPA. These analyses are
the key elements to maintaining the health of marine mammal species and
are the premise for incidental take authorizations under the MMPA.
Applicants seeking incidental take authorizations for their activities
will still have to submit sufficient information to provide for
compliance with all requirements of the ESA, NEPA, and the
Administrative Procedure Act (APA), where they apply.
Thus, to make the requisite negligible impact determination and to
comply with other environmental laws, NOAA Fisheries would still have
to know what activities would be taking place, as well as when and
where they would occur under the language proposed by H.R. 2693.
Incidental take applications are currently evaluated based on the
biological significance of the effect that their actions would have on
marine mammals. This will not change under the amendments proposed in
H.R. 2693. NOAA Fisheries supports these amendments.
General Authorization Process
NOAA Fisheries appreciates the attention towards the authorization
process for activities involving incidental takes in Section 14 of H.R.
2693. Nonetheless, we have several questions and concerns about the
effect of this section on the incidental take authorization process.
Specifically, it is not clear what is the intended interplay between
this section and the bill's proposed amendments to the harassment
definition. In addition, it is not clear what is the intended interplay
between this subsection and subsections related to incidental take and
harassment authorizations. It is also not clear how NOAA Fisheries
could make the requisite negligible impact determinations and comply
with other laws such as NEPA and the APA within the timelines provided.
We would like to request follow-up discussions with you and your staff
to better understand the intent behind this section of the bill and its
effect on implementation before we provide further comment on these
amendments.
Take Reduction Plans
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. NOAA Fisheries appreciates the
steps that H.R. 2693 takes toward improving the approach to marine
mammal bycatch reduction efforts.
Expansion of Sec. 118 Requirements to Allow Agency to Address All
Important Sources of Marine Mammal Bycatch
The Administration bill contains several amendments aimed at better
managing and monitoring marine mammal bycatch. For example, the
Administration bill would expand the Section 118 requirements, which
outline a program for monitoring, tracking, and reducing marine mammal
bycatch in commercial fisheries, to non-commercial fisheries that
result in frequent or occasional incidental mortality and serious
injury of marine mammals. Some non-commercial fisheries, including
recreational fisheries, use gear that is identical to that used by
commercial fishermen and deploy it in the same manner. As a result,
they can be an important source of incidental mortality and serious
injury of marine mammals. 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. We are
pleased that H.R. 2693 contains amendments similar to those proposed in
the Administration bill that would allow NOAA Fisheries to address all
important fishery-related sources of marine mammal bycatch and to treat
different fishing sectors more equitably.
Increased Flexibility to Establish Take Reduction Plans, Prepare Take
Reduction Plans, Meet Bycatch Reduction Goals
H.R. 2693 would give NOAA Fisheries increased flexibility in the
time allotted to convene a Take Reduction Team (TRT) following issuance
of final Stock Assessment Reports. It would also increase the time
within which Take Reduction Plans (TRPs) must meet the short-term goal
of Section 118--reducing marine mammal mortalities and serious injuries
in the course of fishing operations to levels below a marine mammal
stock's potential biological removal (PBR)--from 6 months to 9 months.
Additionally, the bill would give TRTs additional time to submit draft
TRPs to NOAA Fisheries, and the agency more time to prepare and publish
proposed and final regulations implementing TRPs. We support these
amendments. The amended deadlines are more achievable than the current
statutory deadlines and they would not compromise efforts to conserve
marine mammal stocks in a substantial way. In addition, the proposed
statutory deadlines would make it easier for the agency to comply with
other statutory requirements, such as NEPA and ESA.
Limited Authority to Monitor Bycatch in Some Fisheries
We do have a few concerns about the effect of the proposed language
in Section 6 of H.R. 2693. For example, the portions of H.R. 2693 that
amend the portion of the MMPA dealing with monitoring of incidental
takes would limit the agency's ability to monitor Category III
fisheries, those that have a remote likelihood of or no known
incidental mortality of marine mammals. Several fisheries currently
listed as Category III have historically taken marine mammals, or are
very close to the threshold between Category III and Category II. Thus,
it is important for NOAA Fisheries to have the ability to continue
monitoring marine mammal bycatch in these fisheries at least on some
basis to ensure that takes are kept at low levels. Additionally, there
may be some unintended effects in other parts of this section that
could result from different terms describing the types of fisheries in
conforming amendments to this section. NOAA Fisheries is also concerned
with the compressed timeline for us to develop new information for any
necessary changes to the list of fisheries under this section.
Required Representation on Take Reduction Teams
H.R. 2693 would require NOAA Fisheries staff with specific
responsibilities or expertise to serve as formal members of TRTs. While
it is useful to have such expertise available to the TRT, NOAA
Fisheries does not feel it is necessary to require in the statute such
representation on TRTs for a number of reasons. First, the agency
already has the authority and flexibility to place representatives of
Federal agencies, including NOAA Fisheries, on take reduction teams
when necessary. Second, TRTs as currently constructed offer a unique
opportunity for public stakeholders and other entities to advise NOAA
Fisheries on ways to address incidental take of marine mammals. Third,
NOAA General Counsel, and NOAA Fisheries Regional Administrator
representatives, scientists, and enforcement specialists are already
actively involved in the take reduction plan development process and
routinely attend TRT meetings, offering their expertise as needed.
Requiring their membership on TRTs could pose potential problems to the
viability of the process if personnel and resources are limited. Rather
than making their membership on TRTs a strict legal requirement, we
recommend changing H.R. 2693 to simply encourage that such staff be
present and active in TRT meetings, which is already the case. If the
Committee does not feel that the current practice has produced the
needed level of technical expertise available to the TRT, we would be
happy to work with you to resolve this issue.
Requirement to Reconvene TRT after Take Reduction Plan Development
H.R. 2693 would require the Secretary to reconvene the TRT and
explain differences between draft and final Take Reduction Plans (TRPs)
before publishing any TRP that is different from the draft plan
proposed by the TRT. NOAA Fisheries believes that it is important to
conduct the TRP development process in as open a manner as possible,
however the proposed language in H.R. 2693 is unnecessarily
restrictive, as it could require the agency to reconvene the TRT
regardless of the degree of change between the draft and proposed
plans. NOAA Fisheries already provides the TRT all the scientific and
other information used to develop the final regulations implementing a
TRP throughout the process. Additionally, we actively encourage TRT
members to comment on the proposed regulations to implement the TRT,
and will often hold meetings during the public comment period to alert
TRT members to the content of the final TRP.
Since TRTs do not submit their recommendations in regulatory form,
some alteration is inevitable during this process. While it is possible
that changes may be substantial, the vast majority of changes made to a
TRT's recommendations have historically been technical in nature, and
therefore, relatively minor. Under H.R. 2693, NOAA Fisheries would be
required to reconvene a TRT even for minor or trivial changes to a TRP.
Such a requirement could lead to unnecessary delays in finalizing and
implementing a TRP, and unnecessary expense. NOAA Fisheries recommends
altering this section to give the agency the flexibility to either
reconvene, or otherwise consult with, the TRT regarding changes to the
TRP during the public comment period soliciting comments on the
proposed TRP. This would allow the agency to choose the most suitable
type of communication with the TRT based on the nature of changes
between draft and proposed TRPs, and would allow us to address TRT
concerns with potential changes before the proposed TRP becomes final.
Alternatively, the Subcommittee may wish to qualify what degree of
change would require NOAA Fisheries to reconvene the TRT.
Pinniped Research
H.R. 2693 would require NOAA Fisheries to initiate a research
program to investigate non-lethal methods to remove or control nuisance
pinnipeds. We agree that such a research program would be beneficial.
NOAA Fisheries issued a Report to Congress in 1999 entitled, Impacts of
California Sea Lions and Pacific Harbor Seals on Salmonids and West
Coast Ecosystems. Among other things, that study concluded that,
``[T]here is a pressing need for research on the development and
evaluation of deterrent devices and further exploration of other non-
lethal removal measures....'' While we are pleased that certain stocks
of marine mammals are healthy, we recognize the problems that
increasing pinniped populations pose, especially on the West Coast.
Captive Release Prohibition
NOAA Fisheries supports H.R. 2693's amendment clarifying that it is
unlawful to release any captive marine mammal without prior
authorization, with the understanding that it should not involve
releases from temporary captivity or holding during permitted research;
releases related to strandings; releases or disentanglements from
fishing gear or line that are covered under other authorities of the
MMPA; or the temporary release of marine mammals, or the progeny of
marine mammals, maintained by the Department of Defense for military
and research purposes if the animals involved are maintained under the
authority of 10 U.S.C. Sec. 7524. Within the scientific community, the
release of marine mammals held in captivity for extended periods of
time is regarded as potentially harmful to both the animals released,
as well as the wild populations they encounter. Fundamental questions
remain as to the ability of long-captive marine mammals 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. NOAA Fisheries
supports this proposed statutory change, and notes that the
Administration bill contains a similar amendment.
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 the agency with
opportunities to save individual animals, as well as to 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. NOAA Fisheries
supports amendments contained in H.R. 2693 that 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. We also support amendments to expressly
enable the Secretary to enter into agreements with individuals to
respond to entangled marine mammals in addition to stranded marine
mammals. The Administration bill includes similar amendments, which
will enhance stranding and entanglement response efforts.
Limited Authority to Export Marine Mammal Products
The 1994 MMPA amendments authorized imports of marine mammal
products in conjunction with travel outside the United States by a U.S.
citizen, or for purposes of cultural exchange between Native
inhabitants of Russia, Canada, or Greenland and Alaska Natives.
However, the provision did not accommodate corresponding exports. We
support the proposed amendment in Section 4 of H.R. 2693 that would
clarify that exports, as well as imports, are permissible under the
MMPA subject to certain conditions. We suggest the bill clarify that
exports shall be limited to noncommercial purposes in conjunction with
travel outside the United States. Additionally, we note and ask the
Subcommittee to consider that other sections of the MMPA could also be
affected by this proposed change including, but not limited to, the
legal sale of handicrafts sold by Native Alaskans intrastate but not
allowed for export. The Administration's proposal contains technical
amendments that ensure consistency throughout the statute. We stand
ready to work with the Subcommittee on these and other issues relating
to Section 4 of the bill.
Other MMPA Reauthorization Issues
NOAA Fisheries encourages the Subcommittee to consider several
additional important reauthorization issues contained in the
Administration bill. Each of these areas is described below.
Other Marine Mammal Bycatch Reduction Initiatives
Again, we support amendments in H.R. 2693 that will allow the
agency to address marine mammal bycatch from all important fishery
sources. We request that other bycatch reduction initiatives that are
contained in the Administration bill are considered, in particular, the
following amendments: 1) Section 409, which 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; 2) Section 516, which directs the Secretary of Commerce
to undertake a research and development program to encourage
development of fishing gears and methods that reduce marine mammal
bycatch; and 3) Section 402(f), which requires NOAA Fisheries to
include technical liaisons with expertise in commercial fishing
practices as members of take reduction teams (TRTs).
Harvest Management Agreements
The 1994 MMPA amendments gave NOAA Fisheries and the FWS authority
to enter into cooperative agreements with Alaska Native Tribes or
Tribally Authorized 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.
Enhancing Enforcement
While several sections of the MMPA have been updated since the Act
was first passed in 1972, some areas remain 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. In addition, the Administration bill would
expand enforcement capabilities by directing the Secretary to take
steps to enter into cooperative enforcement agreements with states.
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 determined to be due to ship strikes.
This number may be significantly higher, inasmuch as we were unable to
attribute a cause to 13 other right whale mortalities known to have
occurred during this period. 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.
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 Prohibition
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 and make corresponding changes
to other provisions of the MMPA to clearly identify those instances
when export, transport, sale, or purchase of a marine mammal or marine
mammal product is prohibited or may be authorized.
Conclusion
Reauthorization of the MMPA provides an important opportunity to
further strengthen efforts to conserve and recover marine mammals. H.R.
2693 takes many important steps toward improving the policies that
govern marine mammal conservation and recovery and I thank you and your
staffs again for all your hard work and dedication to these important
issues. Additionally, my staff and I look forward to future
coordination with you and 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 H.R. 2693, the Administration's MMPA
reauthorization bill, or any other related matters.
______
Mr. Gilchrest. Thank you, Dr. Lent.
Mr. Marshall Jones.
STATEMENT OF MARSHALL JONES, DEPUTY DIRECTOR,
U.S. FISH AND WILDLIFE SERVICE
Mr. Jones. Thank you, Mr. Chairman, Mr. Pallone, and Mr.
Chairman, for giving us this opportunity to testify today on
reauthorization of the Marine Mammal Protection Act.
As you have heard, Mr. Chairman, the administration
strongly supports reauthorizing the MMPA and we very much
appreciate your continued leadership in the effort to do this
with the introduction of H.R. 2693. Today I would like to
comment on some of the provisions of H.R. 2693 which are of
most importance to us in the field and also to say few words
about some of the provisions of the administration's
reauthorization proposal which are not included in H.R. 2693.
I will start with Section 4 of H.R. 2693, which addresses
the limited authority to export marine mammal products. We
appreciate your initiative to address this. We do have some
technical issues which we would like to discuss with you and
your staff to ensure that there is consistency throughout the
act.
Mr. Chairman, the marine mammal act, in my experience, is
one of the most complicated pieces of legislation that we deal
with. And getting all of the sections to line up just right is
kind of like trying to line up the lemons on the slot machine
sometimes, I think. And so we want to make sure that we can get
the best possible dialog to help make sure that the regulated
public and everyone knows exactly what is and is not
prohibited, what is authorized under the permit provisions, and
have all that streamlined.
Mr. Gilchrest. I hope our process is a little more
sophisticated than the randomness of a slot machine.
Mr. Jones. Much more sophisticated, Mr. Chairman.
Secondly, polar bear permits. As we stated in previous
testimony, in general we are opposed to legislative exemptions
to allow importation of sport hunter trophies outside of
established regulations. In this case, however, we fully agree
with the proposed amendment, which would change the date and
allow the importation of polar bear trophies legally taken in
Canada during the period between enactment of the MMPA
amendments in 1994 and the adoption of the final Fish and
Wildlife Service's regulations in 1997. We understand that we
were part of the process which created confusion on the part of
hunters who legitimately took trophies in Canada, and we be we
should make it possible for those trophies to come in. Then we
will have a clean break and we can proceed with our regular
process under our existing regulations for all future trophy
imports.
We also support the proposed amendment to Section 104,
which would remove the requirement to publish two notices in
the Federal Register regarding each polar bear permit--trophy
permit application. We have never received a single public
comment in response to any of the Federal Register's notices
that we publish, either about the receipt of the applications
or about the issuance or denial of the permits.
Then, Mr. Chairman, regarding Section 13, as you heard from
Dr. Lent, the definition of harassment. The administration's
goal is to provide a definition that is more enforceable, that
would provide a greater notice and predictability to the
regulated community by presenting a clear threshold for what
activities do or do not constitute harassment, without
compromising the conservation of marine mammals. Mr. Chairman,
we appreciate your efforts to address these difficulties within
the existing definition, but like NOAA Fisheries, we do have
some questions in our own mind about exactly how the semantics
of the definitions match up, and we would welcome the
opportunity to work with you and your staff to develop a
definition that meets our mutual goals.
Next, Mr. Chairman, regarding Section 14 on incidental
takings of marine mammals. Section 14 is consistent with the
administration's Readiness and Range Preservation Initiative,
and we support ensuring that there is a single standard for
incidental take of all marine mammals. And we note, Mr.
Chairman, your comment that that is, indeed, the jurisdiction
of this Committee. Both the RRPI and H.R. 2693 retain the
negligible-impact standard, which we believe is a key to
ensuring that authorized take has a minimal effect on all of
these species.
Now, Mr. Chairman, very briefly, regarding the
administration's bill. The administration's bill includes a
provision for development of harvest management agreements with
Alaska Native organizations. We believe that is a very
important provision which will enhance the conservation of
marine mammals and help Native organizations take more
responsibility for being a partner with us in that process.
We also would call to your attention, Mr. Chairman, the
provisions in the administration bill which would improve the
collection of information about sea otters by requiring the
Secretary of Commerce to include sea otters in the list of
fisheries published under Section 118; and an amendment in
Section 110 to reauthorize research grants.
In closing, Mr. Chairman, we thank you again for having
this opportunity. We want in particular to express our
appreciation to you and to all of those who have worked with
us, including, particularly, the Alaska Native community and
the effort that they are making. And we believe that working
together, we can achieve a meaningful and constructive
reauthorization of the Marine Mammal Protection Act in this
session of Congress.
I would be happy to answer any questions you may have, Mr.
Chairman.
[The prepared statement of Mr. Jones follows:]
Statement of Marshall Jones, Deputy Director,
Fish and Wildlife Service, U.S. Department of the Interior
Mr. Chairman and Members of the Subcommittee, I thank you for the
opportunity to provide the Department of the Interior's (Department)
views regarding reauthorization of the Marine Mammal Protection Act
(MMPA or Act) of 1972 and H.R. 2693, the Marine Mammal Protection Act
Amendments of 2003. I am Marshall Jones, Deputy Director of the U.S.
Fish and Wildlife Service (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 Service, protects
and manages polar bears, sea and marine otters, walruses, three species
of manatees, and the dugong.
Mr. Chairman, we commend you for your continued leadership in the
effort to reauthorize the MMPA, including the many oversight and
legislative hearings you have chaired, and your introduction of H.R.
2693. Over the past few years, this Subcommittee has held several
hearings that have served to frame the issues of importance in
reauthorization, and bring forward concepts to address those issues.
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 Department, the
National Oceanic and Atmospheric Administration (NOAA) in the
Department of Commerce, the Marine Mammal Commission (Commission), our
partners in the Alaska Native community, and other federal and non-
governmental partners.
We look forward to working with you and members of the Subcommittee
during this session of Congress in a dedicated effort to reauthorize
the MMPA and enact amendments that improve our ability to conserve and
manage marine mammals. My testimony will provide the Department's
comments on H.R. 2693, focusing on issues that relate to the Service's
implementation of the MMPA. My testimony will also briefly discuss, as
the Subcommittee requested, the Minerals Management Service's (MMS)
interaction with the MMPA.
I will first discuss some of the key amendments proposed by the
Administration that are not included in H.R. 2693. These amendments
were developed by the Services in the context of our experience in
implementing the MMPA. We believe these amendments will enhance the
effectiveness of the MMPA in its stated goals, and we urge you to
consider adopting them as H.R. 2693 moves through the legislative
process.
Amendments proposed by the Administration not included in H.R. 2693
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 important partnership with
these organizations.
The MMPA prohibits the taking (e.g., harassing, hunting, capturing
or killing) 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.
Following the dramatic decline of Beluga whales in Cook Inlet due
to over-harvest, representatives of the Native community expressed
their desire to develop a cooperative management structure for
regulating harvest of marine mammal stocks. In response to the interest
of the Native community in developing such a harvest management
structure, the responsible federal agencies, including the Service,
NOAA, 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 governmental authorities of Tribes and
Tribally Authorized Organizations. 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 would rely on existing Tribal
authorities, rather than creating new federal authorities.
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 authorization, 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.
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 Nino
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.
H.R. 2693, the ``Marine Mammal Protection Act Amendments of 2003''
Again, we commend you Mr. Chairman, for introducing a bill to
reauthorize the MMPA. My comments on H.R. 2693 are limited to
provisions which relate to the Department of the Interior, and the
Department of Commerce and the Marine Mammal Commission will present
the Administration's views on other provisions.
Section 5: Miscellaneous Authorizations of Appropriations
The Service appreciates that Section 5(c) of H.R. 2693 includes
specific authorizations for Section 119 of the MMPA. These
authorizations are important because they make clear that funding may
be directed to support Cooperative Agreements in Alaska. As we have
stated in previous testimony before this Subcommittee, the Service
recognizes the accomplishments achieved to date through our existing
cooperative agreements and hopes to continue participating in these
important agreements.
Section 10: Polar Bear Permits
As we stated in previous testimony before the Subcommittee on June
13, 2002, as a general rule the Department is opposed to legislative
exemptions that allow importation of sport-hunted trophies outside of
established regulations. However, in this case, the Department supports
the bill's proposed amendment to extend the time-frame for such
importations as established in the 1997 amendments. This would allow
for the importation of polar bear trophies legally taken in Canada
during the period between enactment of the 1994 amendments and the
issuance of final the implementing regulations on February 18, 1997.
We note with approval, however, that under H.R. 2693, imports of
polar bear trophies taken since February 18, 1997, would continue to be
allowed only from approved populations. U.S. trophy hunters should only
take bears from those populations which have been found to be
sustainable. The February 18, 1997, final regulations establish clear
importation requirements for trophies. Trophies taken after that date
can only be imported in compliance with those regulations. H.R. 2693
would not change this fact.
The Department also supports the proposed amendment to Section 104
which would remove the requirement to publish two notices in the
Federal Register for each permit application to import polar bear
trophies. The Administration's proposal contains a similar amendment.
The Service has processed on average 90 applications for polar bear
permits annually for the past six years and received no comments in
response to the Federal Register notices. The proposed amendment would
streamline the permitting process and reduce the administrative expense
of publishing notices. The public would still be given the opportunity
to comment on findings to approve new Canadian polar bear populations
for import, and would continue to have access, on a semiannual basis,
to current information on permits.
Since H.R. 2693 would no longer require the publication of Federal
Register notices for each individual application, the Service notes
that there is one other subsection in the current law that requires
amendment so that all subsections of the MMPA reflect the proposed
change. To fully accomplish this change, the phrase, ``expeditiously
after the expiration of the applicable 30 day period under subsection
(d)(2),'' would need to be deleted from the first sentence of
subsection 104(c)(5)(D).
Section 13: Definition of Harassment
In revising the definition of harassment, the Administration's goal
is to provide a definition that is more enforceable and that would
provide greater notice and predictability to the regulated community by
presenting a clear threshold for what activities do or do not
constitute harassment, without compromising the conservation of marine
mammals. For Level B, for example, the Administration bill moved from
including any activity that has the ``potential'' of disturbing a
marine mammal, to an activity that is ``likely'' to disturb. The
concern was that arguably many activities could have the potential, no
matter how remote, of causing a negative response, whereas likelihood
indicates a level of certainty that the event actually will occur.
Thus, the regulated public will better be able to gauge when they
should apply for an incidental take authorization. Also, likelihood is
a legal standard that already appears elsewhere in the statute (e.g.,
the standard for issuing an enhancement permit and the section 118(c)
commercial fisheries list) and is recognized in common law.
Mr. Chairman, we appreciate your efforts to address the
difficulties with the existing harassment definition through MMPA
reauthorization. The amendment to revise the definition in H.R. 2693 is
similar in concept to the Administration's proposed amendment. Both
versions focus on those activities that would cause disruption of key
biological behaviors, whereas some have suggested that the current
definition could include activities that cause any negative behavioral
reaction, no matter how temporary or how minor. We also agree that the
definition should apply to ``any act'' rather than the current
statutory definition, which is limited to acts of ``pursuit, torment,
or annoyance.''
However, we are concerned with some of the terms in the proposed
definition in H.R. 2693. For example, H.R. 2693 uses the term
``probability'' in Level A harassment and we are concerned that this
may create standard that would not apply to some activities that may
have negative impacts on marine mammals. We are also concerned about
the ``potential to disturb'' threshold in the second clause of the
proposed harassment definition in H.R. 2693. The Service and the other
agencies involved in developing the Administration's proposed
definition considered this language to be overly broad. We believe that
the standard included in the Administration proposal, ``disturbs or is
likely to disturb,'' provides a more appropriate standard for what
activities would be covered under this part of the harassment
definition. We would welcome the opportunity to explore these issues
and concepts with your staff as you work to craft a definition that
meets our mutual goals of providing a clear, focused definition that
adequately protects marine mammals.
Section 14: Incidental Takings of Marine Mammals
H.R. 2693 amends the MMPA's provisions that authorize incidental
takings of marine mammals that may occur during otherwise lawful
activities. Under the current law, the Secretary may authorize take of
small numbers of marine mammals in a specified geographic region if the
Secretary determines that such take will have no more than a negligible
impact on the marine mammal species or stocks, and will not have an
unmitigable adverse impact on subsistence harvest of those species or
stocks. H.R. 2693 amends this provision by removing the terms ``small
numbers'' and ``specified geographic region.''
We note these changes are consistent with the Administration's
Readiness and Range Preservation Initiative (RRPI) amendment to the
MMPA contained in its proposed National Defense Authorization Act for
Fiscal Year 2004. However, the RRPI language pertains only to military
readiness activities. We support ensuring that there is a single
standard for all regulated entities. Both the RRPI and H.R. 2693 retain
the negligible impact standard, which is key to ensuring that
authorized take has a minimal effect on these species. Furthermore,
under this amendment, incidental take authorization can still only be
granted if the take will not have an unmitigable adverse impact on the
availability of the marine mammal species or stocks for subsistence
uses. These standards are important to ensuring that take
authorizations do not degrade the ability of the Service to effectively
conserve, protect, and/or restore marine mammal populations.
H.R. 2693 also adds a new general take authorization process. This
language is new to us, and we respectfully request more time to analyze
its implications, and would like to meet with your staff to discuss the
purpose of the amendment. We did, in our initial analysis of this
general authorization language, identify one concern. The amendment
requires the Secretary to issue implementing regulations for this
general authorization no later than 120 days after enactment. We are
concerned that this statutory deadline could result in ineffective and
ill-conceived regulatory language.
Technical Issues Related to H.R. 2693
Section 4 of H.R. 2693, as proposed, may inadvertently confuse the
regulated public by changing one aspect of the MMPA's import/export
provisions, without making similar necessary changes elsewhere in the
statute. The Administration's proposal contains additional technical
corrections that ensure consistency throughout the statute.
An additional provision in the Administration's proposal that we
believe is critical, but that is not included in H.R. 2693, would amend
102(a)(4) of the MMPA. This provision makes clear that the Service can
prosecute an unlawful transport, purchase, sale, or export of a marine
mammal or marine mammal product, without having to first demonstrate
that the original take of the marine mammal was not lawful.
The Minerals Management Service's Interaction with the MMPA
As noted above, at the Committee's request the Department offers
the following comments on the MMS's interaction with the MMPA.
MMS is the Nation's manager of energy and non-energy mineral
resources on the Outer Continental Shelf (OCS). MMS has the
responsibility to ensure environmentally sound exploration,
development, and production activities on the OCS. That responsibility
is carried out, in part, by managing operations for the continued
protection of marine mammal species under the MMPA. In its efforts to
ensure the protections required under the MMPA, MMS analyzes impacts,
designs mitigation and monitoring guidelines, and defines how
activities are to be carried out to minimize the potential for
harassment or injury to marine mammals. As noted above, the proposed
changes to the definition of harassment provide more clarity, which
facilitates MMS' efforts and provides a greater level of certainty and
predictability to the regulated community. MMS also identifies, funds,
and participates in research necessary for the protection and
enhancement of protected marine mammal species and their habitat, and
provides the information necessary for NOAA or the Service to issue
small take authorizations and promulgate regulations.
While MMS has coordinated with the Service and NOAA for decades on
matters related to the MMPA and the Endangered Species Act, in the past
two years it has enhanced its communication and coordination with the
Service, NOAA, and with industry. For example, an Interagency Agreement
with NOAA to conduct marine mammal surveys was modified to bring
together an international team of experts which included both
researchers and industry representatives to develop new field methods
and a research protocol for controlled exposure experiments on sperm
whales in the Gulf of Mexico. This renewed focus on improved
collaborative efforts has improved MMS's working relationship with the
Service and NOAA on MMPA issues, and has established a process that
works well for the federal agencies as well as the regulated public.
Conclusion
Mr. Chairman, in closing I would like to again commend you for your
leadership on reauthorizing 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. We believe that H.R. 2693 and the
Administration's proposed amendments provide the Department with a
solid foundation from which to proceed.
Mr. Chairman, this concludes my remarks. I am happy to answer any
questions that you might have.
______
Mr. Gilchrest. Thank you very much, Mr. Jones.
Mr. Cottingham?
STATEMENT OF DAVID COTTINGHAM, EXECUTIVE DIRECTOR, MARINE
MAMMAL COMMISSION
Mr. Cottingham. Thank you, Mr. Chairman. Mr. Chairman, Mr.
Pallone. We appreciate the opportunity to be here today to
discuss this with you. As you mentioned, this statute has, as
Mr. Jones mentioned, it has--the Marine Mammal Protection Act
has become complicated over the last 30 years, but it has also
accomplished a great deal. And I think I would just like to
take a few moments and talk about some of the things that it
has accomplished.
Of course, the statute passed in 1972 and was signed then,
so we just celebrated the 30th anniversary. Since that time,
numerous species of dolphins in the eastern tropical Pacific,
the incidental catch rate is way, way down. Several gray whales
have been delisted. And this statute has really been on the
forefront of leading the conservation effort, not just for
marine mammals but other marine species as well. And it has
been very forward looking. And I think it is--we shouldn't--we
need to take advantage of this opportunity to look back at the
last 30 years, and this statute has really accomplished a lot
in terms of reducing incidental catch, not just in the tuna
fishery, but other fisheries as well.
Of course, there are new challenges with anthropogenic
sources--some of the things that are going on with sea otters
right now, and other sources. So there are still some
challenges, and we look forward to addressing those with our
counterparts and colleagues in the other agencies and in
academia.
In your letter if invitation, you specifically asked us to
discuss the noise issues and the dialogs we are having. We
appreciate Congress' providing us some funds in this year's
Fiscal Year 2003 appropriation to convene a series of
conferences to discuss this anthropogenic sound in the marine
environment. And we are in the process of doing that right now.
We are--we have--we are about to hire some professional
facilitation groups, and we will probably end up chartering a
Federal advisory Committee on that to solicit the advice of
experts in this country and several from around the world so
that we can address this, identify some of the research needs,
the top-priority research that was pointed out in the National
Research Council's recent report, as well as some of the
mitigation aspects. And do that. So we will be in touch with
your staff on that as we progress.
Now if I could turn to the comments on H.R. 2693. We truly
appreciate your leadership on this, both the Chairmen. I am not
sure what the--is it plural ``Chairmen'' here, is that the way
you say that? --on this. It is a very good start, and I
appreciate you saying it was a starting point.
Very much like Mr. Jones and Dr. Lent have said, we worked
very hard on the administration bill, and I am sure that some
of the debates that you are now having amongst yourselves over
some of the semantics and diagramming sentences, as you
mentioned, are very similar to some of the debates that went on
within the administration as we chose our words. So we welcome
the opportunity to work with you on a number of those issues.
And we think you have really come a long way. This is a much
better, much more comprehensive bill than the last time.
The--it is almost--as we get into the details of harassment
and things like this, I just would ask that you work very
closely in developing report language, explaining what you mean
on these things, even with specific examples. Because
regardless of what final words end up in the statute for
definitions like ``harassment,'' we will--if we take yours or
the administration's bill or the NRC's bill, the agencies will
end up putting out guidelines or regulations on ``potential to
disturb'' or ``biologically significant''--``biologically
significant disruption'' as opposed to ``disruption of natural
behavioral patterns.'' So it is going to be very important for
those of us in the executive branch to have a clear
understanding of what you mean as precisely as you can. I think
good report language on that will be absolutely essential.
Our written testimony goes into detail in a section-by-
section. Primarily we agree with the concepts you are trying to
do and have some little questions on the take reduction plan
portions, the captive release requirements, the harassment
definition, the export-import provisions for handicrafts, the
waivers, the permits. I would like to second what both Mr.
Jones and Dr. Lent have raised here with regard to the things
that were not in the bill--the Alaska Native harvest, the ship
strikes, the traveling cetacean exhibits. There used to be a
prohibition for traveling cetacean exhibits, and we thought
that should be put back in there. It was part of the
administration's bill as well.
I see my time has run out, so with that, Mr. Chairman, we
appreciate the opportunity to be here today and look forward to
working with all of you as we proceed to reauthorize this
important legislation.
Thank you, sir.
[The prepared statement of Mr. Cottingham follows:]
Statement of David Cottingham, Executive Director,
Marine Mammal Commission
Thank you for providing the Marine Mammal Commission with the
opportunity to present its views on H.R. 2693, the Marine Mammal
Protection Act Amendments of 2003, and to share its thoughts on other
issues related to reauthorization of the Marine Mammal Protection Act
that currently are not addressed in the bill. You also requested that
the Commission provide you with an update of its progress toward
convening an international conference, or series of conferences, to
survey acoustic threats to marine mammals and develop means of reducing
those threats, as called for under the Fiscal Year 2003 omnibus
appropriations legislation enacted earlier this year.
As noted in your invitation to testify, H.R. 2693 has many
similarities to H.R. 4781, which was passed out of this Subcommittee
during the last session of Congress. The current bill also contains
several important improvements that respond to concerns expressed by
the Commission and others at the 13 June 2002 reauthorization hearing.
Among these are extension of the proposed amendments to section
101(a)(6) of the Act to include export authorizations that would
conform with all of the import provisions enacted in 1994; provision of
specific authorizations for cooperative agreements under section 119 of
the Act; expansion of the proposal to include certain recreation and
subsistence fisheries under the incidental taking regime established
under section 118 of the Act; amendments to various provisions of Title
IV of the Act to clarify that they apply to entanglements, as well as
strandings; and a redefinition of the term harassment. In addition,
H.R. 2693 includes proposed amendments to section 101(a)(5) of the Act
that respond to problems with the existing provisions raised by the
Administration earlier this year in the context of the Department of
Defense's Readiness and Range Preservation Initiative.
Although H.R. 2693 includes several of the key elements contained
in the Administration bill transmitted to Congress last February, it
also omits some of the recommended amendments. Foremost among these is
the proposal worked out jointly by the Commission, the Fish and
Wildlife Service, the National Marine Fisheries Service, and
representatives of the Alaska Native community to expand the existing
section 119 authority to enable the parties to enter into enforceable
harvest management agreements. It is not clear whether these omissions
reflect determinations by the Committee that certain issues should not
or need not be addressed during the reauthorization process, or whether
the Committee intends to pursue these other issues, but has yet to
develop specific language. We encourage the Committee to give
additional consideration to including all of the Administration's
recommended amendments in the legislation. Regardless of whether they
represent major substantive changes, such as management of subsistence
harvests, or mere technical corrections, each is expected to improve or
clarify the Act. In this regard, we remain available to work with the
Committee and its staff and would welcome the opportunity to provide
additional explanation of the rationale behind these proposals or
otherwise respond to any concerns that you may have with respect to any
of the elements in the Administration's bill.
I will begin by discussing the Commission's observations regarding
the provisions included in H.R. 2693.
Section 3--Technical Corrections
The Commission concurs that the proposed corrections are
appropriate and should be made. It is unclear, however, why other
technical amendments are not also being proposed. We believe that other
such corrections are in order, such as the deletion of section 114 and
references thereto made in other sections of the Act, deletion of
section 120(j), and those corrections set forth in section 520 of the
Administration's proposed bill. Also, the change that would be made
under section 3(b) of the bill appears to duplicate the amendment set
forth in section 6(5)(B) of the bill. Presumably one of these
provisions should be deleted.
Section 4--Limited Authority to Export Marine Mammal Products
As noted in previous Commission testimony, several provisions of
the Act were not revised in 1994 to reflect the prohibition on
exporting marine mammals that was added at that time. One of these is
section 101(a)(6), which authorizes the import, but not the export, of
marine mammal products for purposes of cultural exchange and by U.S.
citizens in conjunction with travel abroad. As such, the Commission
agrees that an export authorization needs to be added to this section.
At the previous reauthorization hearing before this Committee, the
Commission recommended that the export authorization contained in H.R.
4781 be expanded to include exports of legally possessed marine mammal
products by U.S. citizens traveling abroad. We are pleased that the
current bill has adopted this recommendation. We are concerned,
however, with the specific language of that provision. Unlike the
Administration's proposal, the provision in H.R. 2693 would allow
exports, but would not require that the marine mammal item exported by
the U.S. citizen be returned to the United States upon completion of
the travel. This could result in enforcement problems by creating a
significant loophole that would allow for the export and subsequent
sale of marine mammal products once they are outside the jurisdiction
of the United States. In this regard, we note that, unlike the proposed
cultural exchange provision, there is nothing that limits such exports
to noncommercial purposes. Further, we note that the statutory
definition of the term ``marine mammal product'' includes any item of
merchandise that consists of, or is composed of, any marine mammal
part, and would include items such as tanned, but unworked, seal skins;
raw walrus ivory; marine mammal bones; and, perhaps, even polar bear
gallbladders. This would go far beyond what was envisioned under the
1994 amendment pertaining to imports, which, as explained in the House
report, was included primarily to enable U.S. citizens who obtain
marine mammal handicrafts in Alaska to return home via Canada without
encountering problems when they re-enter the United States.
Section 6--Take Reduction Plans
Although structured somewhat differently than the Administration's
proposal to expand the section 118 incidental take regime to include
recreational and subsistence fisheries that frequently or occasionally
kill or seriously injure marine mammals, this section of H.R. 2693
incorporates most of the substance of that proposal. The Commission
believes that this proposal is significantly improved over the one
included in H.R. 4781. This is much more comprehensive. It would
include these fisheries under the section 118 incidental take
authorization and, in so doing, would make them subject to the
registration, monitoring, reporting, and take reduction requirements
applicable to their commercial counterparts.
There are, however, some differences between the proposed
amendments in H.R. 2693 and the Administration's proposal that merit
discussion. For example, section 404(h)(5) of the Administration bill
would add the word ``commercial'' to section 118(c)(3)(E) to clarify
that this provision applies only to category III commercial fisheries.
By not incorporating such a change to this subparagraph, H.R. 2693
could be interpreted as including non-commercial fisheries (other than
those listed under section 118(c)(1)(A)(i) and (ii)), thereby allowing
incidental taking by participants in those fisheries, but also
requiring those fishermen to report any incidental marine mammal
mortalities or injuries that may occur. Although we have no objection
to placing such a requirement on those non-commercial fisheries not
included on the expanded list of fisheries, this may not have been the
intent of the drafters of the bill.
Consistent with the Administration's proposal, H.R. 2693 would
amend subparagraphs (A) and (B) of section 118(d)(4), which pertain to
priorities for placing observers on vessels engaged in category I and
II fisheries, to apply to both commercial and non-commercial fisheries.
No similar amendment to subparagraph (C) is included in the bill.
Presumably this third-tier criterion should similarly factor in taking
from all category I and II fisheries, not just commercial fisheries.
The proposed expansion of section 118 to include some recreational
and subsistence fisheries has ramifications for other provisions of the
Act as well. Recommended changes to these other provisions that we
believe should be made to conform them to the proposed amendments to
section 118 are set forth in section 404 of the Administration bill. We
believe that the Committee should give further consideration to
including these conforming amendments as it considers H.R. 2693. For
example, unless section 101(a)(5)(E) is modified, there would be no
mechanism for authorizing the incidental taking of marine mammals
listed under the Endangered Species Act by non-commercial fishermen,
even when such taking would have a negligible impact on the species.
Section 7--Pinniped Research
The Commission agrees that more needs to be done to develop
effective, non-lethal methods for deterring pinnipeds from engaging in
harmful interactions with fishing operations. Presumably this is the
focus of the proposed amendment, inasmuch as paragraph (2) of the
proposed provision would require the Secretary to include
representatives of the commercial and recreational fishing industries
among those tasked with developing the research program. However, by
referring more generally to ``nuisance pinnipeds,'' the provision
suggests that its intent is broader than just fishery interactions. It
therefore would be helpful if the Committee, in its report on the bill,
were to provide additional guidance as to what constitutes ``nuisance
pinnipeds'' and the types of problems it expects the program to
address.
Section 8--Marine Mammal Commission
We appreciate the Committee's interest in providing the Commission
with greater flexibility in allocating its resources to meet its
responsibilities. However, the appropriation levels that would be
authorized under subsection (c) should be made consistent with the
levels contained in the President's Budget.
As reflected in the Administration bill and past Commission
testimony, the limitation on the daily amount that the Commission can
spend on experts or consultants has effectively precluded us from using
such services for some time. We appreciate the Committee's recognition
of this problem and welcome the amendment in subsection (b), which will
put the Commission on an equal footing with other agencies in our
ability to make use of such services.
Section 10--Polar Bear Permits
As the Commission has noted in previous testimony before the
Committee concerning reauthorization of the Marine Mammal Protection
Act, there is little purpose served by the notice and comment
requirements of section 104 as they pertain to the issuance of permits
authorizing the importation of polar bear trophies from Canada. The
only question for the Service to consider at the application stage is
whether the bear was legally taken from an approved population. As
such, the Commission supports the intent of the proposed amendment. We
do, however, have two drafting suggestions. In proposed paragraph (3),
the phrase ``required to be'' should be inserted after the words
``application was'' to clarify that this provision applies whenever a
notice should have been published, whether or not publication actually
occurred. Also, a conforming amendment is needed to the first sentence
of section 104(c)(5)(D) to delete the phrase ``, expeditiously after
the expiration of the applicable 30 day period under subsection
(d)(2),''.
Section 11--Captive Release Prohibition
This provision is patterned on a proposed amendment contained in an
earlier version of the Administration bill. Since that time, the
Administration has tried to tighten-up its proposal to clarify that it
applies only to marine mammals maintained in captivity at a facility
and that it does not apply to temporary releases of marine mammals for
military and research purposes by the Department of Defense. We suggest
that the Committee consider including similar limitations in its
proposal.
Section 12--Stranding and Entanglement Response
This section incorporates most of the provisions pertaining to
Title IV of the Marine Mammal Protection Act recommended in the
Administration bill. As such, it is a welcome addition to the House
bill as compared to the bill introduced in 2002. The one substantive
difference is the omission in H.R. 2693 of the amendment proposed in
section 511 of the Administration bill. This amendment to section 405
of the Act would provide the National Marine Fisheries Service the
flexibility to use other funds appropriated under the Act, not just
those specifically earmarked for addressing unusual mortality events,
when needed to respond to such events. We believe that this is a
worthwhile amendment and encourage the Committee to give it additional
consideration.
Section 13--Definition of Harassment
The proposed redefinition of the term ``harassment'' in H.R. 2693
is similar, but not identical, to that included in the Administration
bill. As such, there are elements with which we agree, but parts that
we think may cause problems if enacted. For example, for an act to
constitute Level A harassment under the introduced bill, there must be
``the probability'' that a marine mammal or marine mammal stock will be
injured. The inclusion of this threshold suggests that it must be more
likely than not that an injury will result from the particular action
being considered. That is, if there is a 25 percent chance that a
marine mammal will be injured by exposure to a particular stimulus, a
one-time exposure would not necessarily be considered harassment, even
though the risk of injury is substantial. As such, we recommend
replacing the word ``probability'' in the Level A harassment definition
with a more inclusive phrase such as ``significant potential,'' as used
in the Administration's proposal.
Like the existing definition of Level B harassment and that
recommended by the Administration, the proposal in H.R. 2693 contains a
list of behaviors that, if disrupted to the extent specified, would
constitute harassment. We are concerned, however, that the list of
specifically identified behaviors in the House bill does not include
sheltering, which is an element of both the existing definition and the
Administration's proposal. For example, the resting behavior of spinner
dolphins in Hawaii, in secluded, inshore areas clearly fits within the
notion of sheltering. It is not as clear that such behavior would be
encompassed by the terms ``care of young, predator avoidance, or
defense,'' which are the closest associated terms under the proposed
harassment definition in H.R. 2693. Further in this regard, we note
that the terms ``care of young,'' ``predator avoidance,'' and
``defense'' included in the proposed definition of Level B harassment
are not very precise terms. Absent clarification, their inclusion in
the definition may lead to implementation difficulties and, perhaps
litigation.
We are also concerned about the ``potential to disturb'' threshold
set forth in the second clause of the proposed harassment definition.
The agencies that developed the Administration's proposed definition
rejected this language as being overly broad, inasmuch as it would
include even a very remote possibility that disturbance might occur. We
believe that the standard included in the Administration proposal,
``disturbs or is likely to disturb,'' provides a more appropriate
delimitation concerning what activities should be covered under this
part of the harassment definition.
The Commission is pleased that the Committee has recognized the
value of including a directed taking provision in the definition of
Level B harassment, as recommended by the Administration. Absent this
second prong, it would be much more difficult, if not impossible, for
the regulatory agencies to bring enforcement cases in response to
activities that traditionally have been considered harassment. Even in
a case when a marine mammal had been intentionally pursued, the
government, to prevail, would need to show not only that the animal was
disturbed by the pursuit, but that the resulting disruption was somehow
``biologically significant.'' For example, is the disturbance that
results from chasing a dolphin along a beach for a few hundred yards
with a jet ski biologically significant? Arguably not. Nevertheless, it
should be considered harassment.
We are concerned, however, about the inclusion of the phase ``is
likely to impact the individual'' in this second part of the Level B
harassment definition (clause iii). It raises a possible defense in a
traditional harassment case that, even though a marine mammal was
clearly disturbed by the directed activities of the defendant, the
disturbance somehow did not have any impact on the health or well-being
of the animal. It may be that the intent of the provision is to include
all directed activities that are likely to disrupt one of the listed
marine mammal behaviors. If this is the case, it should be clarified,
either in the statutory language or the accompanying legislative
report.
Section 14--Incidental Takings of Marine Mammals
The first three parts of the section parallel amendments to section
101(a)(5) of the Act proposed by the Administration in the context of
the Department of Defense's Readiness and Range Preservation
Initiative. They address the so-called ``small numbers'' and
``specified geographical region'' limitations of those incidental
taking provisions. Recognizing that any incidental taking
authorizations issued under section 101(a)(5) would still require a
negligible impact determination, the Commission has no objection to
these amendments.
The fourth paragraph of this section introduces a new element to
section 101(a)(5)--a general authorization for certain activities that
will have a negligible impact on the affected marine mammal stocks. The
Commission supports the idea of including a general authorization
provision for certain types of activities that have low-level impacts
on marine mammals that do not merit the more rigorous authorization
processes established under section 101(a)(5)(A) and (D). We are
concerned, however, that the proposed general authorization included in
H.R. 2693 is overly broad and apparently would include all activities
that currently receive authorizations under the existing provision
(i.e., those determined to have a negligible impact).
Before we can comment further, additional description of the
proposal is needed. For example, how would the general authorization
relate to the existing authorization provisions? Existing section
101(a)(5)(A), which requires the issuance of regulations, allows for
the authorization of all types of incidental taking (including
mortalities), provided that a negligible impact finding is made and
certain other requirements are met. Section 101(a)(5)(D) provides a
streamlined, notice-and-comment procedure for takings by harassment. It
would follow that a general authorization would apply to some further
subset of activities, such as those that involve taking only by Level B
harassment, or those that so clearly meet the negligible impact
requirement that a more involved authorization process is not
warranted. If this is the intention of the provision, we do not think
that it is reflected in the language of the bill. Even if the provision
were limited to takings by Level B harassment, we may have concerns
about using a truncated authorization procedure, inasmuch as the
proposed redefinition of that term under section 13 of the bill, would
include only biologically significant disruptions of marine mammal
activities. That is, there would no longer be a de minimus aspect to
Level B harassment that would warrant a general authorization of all
such activities.
We are also concerned with the extent of the information that those
seeking coverage under the general authorization would be required to
submit. For instance, there is no requirement that the ``applicant''
provide a description of the activities that will be conducted. Without
such information, it is not clear how the Services can determine
whether the activities fit within the scope of the general
authorization.
Depending on what activities and levels of taking would be included
under the general authorization, we also may have concerns about the
anticipated public involvement in the authorization process. Currently,
all incidental take authorizations under section 101(a)(5) are subject
to substantial public notice and review requirements. Although the
public apparently would have such opportunities at the stage where the
general authorization and implementing regulations are issued, no
similar opportunity appears to be provided for determinations as to
whether specific activities fit within the scope of the general
authorization. This could be a major shortcoming of the proposal if
negligible impact determinations will be deferred until specific
activities are reviewed at this later stage.
* * * * *
The issues not addressed in H.R. 2693 that we believe merit
consideration by the Committee as it considers reauthorization of the
Marine Mammal Protection Act are, by and large, those included in the
Administration bill transmitted to Congress earlier this year. A brief
summary of those provisions follows.
As previously discussed before this Committee, we and others
believe that there is a need to expand the existing authority of
section 119 of the Act to enable the National Marine Fisheries Service
and the Fish and Wildlife Service to enter into cooperative harvest
management agreements with Alaska Native tribes and Native
organizations authorized by those tribes. The Commission believes that
such a provision, if carefully crafted, would help guarantee that
conservation measures, when necessary, can be implemented before a
marine mammal population has been reduced to a point where it is
depleted. We note that such a provision, although generally supported
by diverse constituencies, has been omitted from the introduced bill.
We hope that this does not reflect a determination that a harvest
management amendment does not merit further consideration.
In addition to the proposal to expand the section 118 incidental
taking regime to include some non-commercial fisheries, which has been
adopted in H.R. 2693, we believe that certain other clarifying
amendments to this section are in order. Section 118 currently requires
that a take reduction plan be developed for each strategic stock that
interacts with a category I or II fishery, regardless of the level of
such interactions or whether the reason the stock is considered to be
strategic is largely independent of fisheries interactions. The
Commission recommends that the Committee consider an amendment to
specify that a take reduction plan need not be prepared for those
strategic stocks for which mortality or serious injury related to
fisheries is inconsequential. The Commission also believes that further
consideration should be given to an amendment proposed by the
Administration to clarify that it constitutes a violation of the Act to
participate in any category I or II fishery without having registered
under section 118, regardless of whether incidental takes occur. A
related amendment that also needs to be considered would specify that
all participants in category I or II fisheries, whether registered or
not, are subject to the observer requirements of section 118. The
Commission also believes that revisions to this section are needed to
enable the responsible agencies to obtain reliable information on the
numbers and types of fishery-related mortalities and injuries involving
California sea otters. Previous Commission testimony has noted that
available funding has not always been sufficient to place observers
within all fisheries that need to be monitored or to place them at
levels needed to provide statistically reliable information. We again
call this issue to your attention and recommend that you consider
possible solutions, including securing contributions from the involved
fisheries.
The draft bill has picked up on some, but not all, of the permit-
related issues highlighted by the Commission and others during previous
hearings on Marine Mammal Protection Act reauthorization. The
Commission continues to be concerned about the appropriateness of
maintaining certain marine mammals--most noticeably cetaceans--in
traveling exhibits, which present special problems for successful
maintenance. We again encourage the Committee to look at this issue
more closely. Further, we believe that sections 101(a)(1) and 104 of
the Act need to be amended to specify that export permits can be issued
directly to foreign facilities.
We also are concerned that the current system for authorizing
exports of marine mammals to foreign facilities does not work
particularly well. We believe, as we recommended in a 3 April 2002
letter commenting on the National Marine Fisheries Service's proposed
public display permit regulations, that it would be useful if Congress
and the interested parties reviewed the current system to identify
whether there are better ways to achieve the goal of providing
reasonable assurance that marine mammals exported from the United
States will be well cared for throughout the duration of their
maintenance in captivity, and that realistically reflect the ability of
U.S. agencies to identify and correct deficiencies at foreign
facilities, while not establishing unnecessary barriers to the exchange
of marine mammals among qualified facilities. We hope that this is an
undertaking that the Committee will want to endorse.
There is also a need to review the issue of exports in contexts
other than permits and cultural exchanges. For example, the Act's
waiver provisions under section 103 do not specifically provide for the
authorization of exports. Likewise, section 101(b) of the Act, which
relates to taking by Alaska Natives, authorizes the manufacture and
sale of traditional handicrafts, but does not specifically authorize
exports of such items.
On a related point, we continue to believe that there is a need to
revise section 102(a)(4) of the Act, which, as amended in 1994,
reinstituted an once-jettisoned impediment to effective enforcement of
the Act. That section requires the government, in an enforcement
proceeding under the provision, to show not only that the transport,
purchase, sale, or export of a marine mammal or marine mammal product
was unauthorized, but also that the taking underlying such actions was
in violation of the Act. This problem had previously been recognized
and rectified by Congress in 1981. The Commission urges the Committee
to remedy this problem once again.
The penalties that may be assessed for violations of the Act have
not been increased since its original enactment 30 years ago. This
being the case, the maximum penalties available under the Marine Mammal
Protection Act are quite low as compared to other natural resources
statutes. We encourage the Committee to review the penalties available
under sections 105 and 106 and consider increasing them to reflect
changes in economic circumstances since 1972. The Commission also
encourages the Committee to give consideration to amending the
forfeiture provisions of section 106 to allow the seizure and
forfeiture of a vessel's cargo (i.e., catch) for fishing in violation
of section 118.
Another enforcement-related amendment that the Committee might want
to consider concerns how penalties assessed under the Act may be used.
A freestanding amendment, enacted in 1999 and codified as part of the
Marine Mammal Protection Act, authorizes the Fish and Wildlife Service
to use fines collected under the Act for activities directed at the
protection and recovery of marine mammals under the agency's
jurisdiction. We believe that similar authority for the National Marine
Fisheries Service would likewise benefit that agency's ability to carry
out its responsibilities under the Act.
Another provision that merits review by the Committee is section
110, which identifies specific research projects to be carried out by
the regulatory agencies. The time frames for completing the existing
activities set forth in this section have elapsed. As such, those
provisions that are no longer operative should be deleted. In their
place, the Committee should consider a more generic directive to the
agencies, enabling the agencies to pursue pressing, broad-scale
projects. Among the studies that might be worthwhile are an
investigation of ecosystem-wide shifts in the Bering and Chukchi Seas
and an examination of possible changes in the coastal California marine
ecosystem that may be contributing to the recent declines in the
California sea otter population.
As noted above, section 405 of the Act allows appropriations to be
placed in the Marine Mammal Unusual Mortality Event Fund only if
specifically earmarked for use with respect to unusual mortality
events. Thus, funds generally appropriated to the National Marine
Fisheries Service for implementing the Marine Mammal Protection Act may
not be used for such purposes, even in years when a large number of
unusual mortality events might occur. The Commission recommends that
greater flexibility be provided in how unusual mortality responses can
be funded.
Although the Marine Mammal Protection Act establishes explicit
procedures to address lethal takes and serious injuries due to
fisheries, it is important to note that there are other ways by which
marine mammals are lethally taken or seriously injured incidental to
human activities. The Committee may wish to consider whether activities
such as, for example, boat or ship strikes of whales might be dealt
with more effectively through a take reduction process or some other
mechanism.
* * * * *
The Commission appreciates the inclusion in our FY 2003 budget of
an appropriation to conduct ``...an international conference, or series
of conferences, to share findings, survey acoustic ``threats'' to
marine mammals and develop means of reducing those threats while
maintaining the oceans as a global highway of international commerce.''
Since the appropriation passed in March, we have been busily working on
this important project.
We have met with Senate and House to solicit their advice and to
clarify the intent behind the legislative directive. We have also met
with a wide range of affected interests such as the oil and gas
industry, oceanographers from major research institutions, the
environmental community, and Federal agencies including the National
Science Foundation, the Minerals Management Service, the Navy (both its
operations and research components), the National Marine Fisheries
Service, the Coast Guard, and the State Department. From these
meetings, we developed a good understanding of potential environmental
threats that might be caused by sound in the oceans and how to produce
a series of reports to address research priorities and appropriate
mitigation measures. We hope the reports will be useful to Congress,
federal agencies, and the public.
We plan to hold a series of policy dialogues in which various
interests will participate. We entered into an agreement with the U.S.
Institute for Environmental Conflict Resolution (also known as the
Udall Center) in Tucson, Arizona, to assist us with the dialogues. We
are about to select a team of professional facilitators to help with
the dialogues. We are exploring whether there will be a need to charter
the group holding the dialogues as a federal advisory committee under
the Federal Advisory Committee Act. We will hold the first meeting of
the group as soon as possible, probably early in 2004.
We appreciate the Committee staff's help in discussing this project
as it has evolved. We will remain in contact with them as we progress.
* * * * *
This concludes my testimony. The Commission appreciates the
opportunity to provide testimony to the Committee on H.R. 2693, and to
update you on our progress in convening the conferences called for
under the Commission's FY 2003 appropriation. I would be pleased to try
to answer any questions that you may have.
______
Mr. Gilchrest. Thank you very much, Mr. Cottingham.
Dr. Tyack. Welcome.
STATEMENT OF DR. PETER TYACK, CONSERVATION BIOLOGIST, WOODS
HOLE OCEANOGRAPHIC INSTITUTION
Dr. Tyack. Mr. Chair, Mr. Pallone, and Mr. Chair, my name
is Peter Tyack. I am a biologist at the Woods Hole
Oceanographic Institution, and I thank you for the opportunity
to provide my views on H.R. 2693.
I was a member of two of the Committees of the National
Research Council on marine mammals and ocean noise, and I would
like to reiterate some of the repeated suggestions of the NRC
committees for changes to the Marine Mammal Protection Act.
When the MMPA was first written, it emphasized takes in
commercial fisheries. The NRC committees argue that the
incidental take authorizations need to be updated for new
issues, such as the effects of noise. As long as a sharp focus
is maintained on the issue of negligible impact, I support the
deletion in Section 14 of H.R. 2693 of the conditions for small
numbers and specified geographical region for these incidental
take authorizations.
I also support the definition for Level B harassment in
Section 13 of H.R. 2693, which, to my take, follows the NRC
definition much more closely than the definition in either H.R.
1588 or H.R. 1835. I must point out that I do disagree with
H.R. 2693's retaining the old definition for activities
directed at marine mammals. This has the perverse result of
holding research designed to protect marine mammals to a higher
standard than activities that do not benefit them.
As the impacts of pervasive and subtle human influence,
such as contaminants and noise, have become more important
compared to whaling and bycatch, our biggest problem involves
our ignorance of how exposed marine mammals are to these risks
and our ignorance of the relationship between exposure and
adverse impacts. I urge Congress to establish a concerted
research program to address these issues. Without this
research, regulators will have to guess in the dark about the
best balance between protecting marine mammals and interfering
with activities, such as oil exploration and naval sonars, that
are high national priorities.
Lack of resources is not the only problem for research to
protect marine mammals. The current regulatory process itself
threatens urgently needed research. Let me illustrate with an
example from the leader in protecting right whales. Scott Kraus
has been waiting 23 months for a renewal of his permit to test
whale-safe fishing gear while NMFS tries to finish
environmental analyses under NEPA. While he waits, at least 10
right whales have been tangled in fishing gear and six are
thought to have died. Fishermen continue to place lethal
fishing gear where it can kill whales, but Kraus cannot test
new ideas for whale-safe gear because the environmental
paperwork for his research is not completed even after almost 2
years of delay.
I have also personally experienced the mad world where
Federal actions block the research needed to protect marine
mammals. Whale-finding sonars that work like fish-finders have
recently been developed to harmlessly detect whales. A study I
developed to test how well they can detect whales at sea was
delayed by a last-minute nuisance lawsuit. In the end, the
judge ruled that the amendment to my permit was invalid because
the NMFS permit division had not prepared a new environmental
assessment under NEPA.
The failure of NMFS to prevail in recent court challenges
suggests the need for programmatic environmental assessments or
impact statements for each activity that may be permitted. And
I would like to second Dr. Lent's comments on this. I think
that I am very happy to hear that the Agency is pursuing this
tack, because I think it is the only path they can take to
resolve this issue.
However, I would like to point out that it typically takes
several months and about $100,000 to produce an environmental
assessment, and up to a million dollars and one to 2 years to
produce an environmental impact statement. The NMFS Office of
Protected Resources will require a considerable injection of
funds and highly skilled personnel to oversee the production of
the required NEPA documents while expediting the flow of
scientific permits.
The time required to obtain a research permit, particularly
those in important conservation issues with endangered species,
has swelled from 3 months to 6 months to 23 months and
counting. These delays can kill critical research. I urge
Congress to follow the recommendation of the NRC and set
deadlines of three to 4 months for issuing a permit for
scientific research.
Congress is now evaluating proposals for specific
exemptions to the MMPA, such as H.R. 1588. Clearly, there are
problems with the act, but I believe that tailoring exemptions
for each special interest is not the right solution. One of the
most important NRC suggestions was to create a uniform process
for all activities, allocating regulatory effort to situations
most likely to risk adverse impacts to marine mammals.
I applaud the House Resources Committee for its efforts to
establish a general authorization in Section 14 of H.R. 2693.
However, I believe that the rapid response critical for the
general authorization would not work without prior programmatic
analyses under NEPA to determine negligible impact, which is
critical for this authorization. Congress should require NMFS
to develop a consultation process, determining for each
seafaring activity whether marine mammals are taken and, if so,
what the impact is. NMFS should list activities with no takes
expected under a de minimis standard for harassment takes.
Activities that may take marine mammals but have negligible
impact should obtain a general authorization exactly of the
sort proposed in H.R. 2693. I believe that other activities can
be authorized on a case-by-case basis, given the modifications
of H.R. 2693 for existing incidental take authorizations.
I hope that this kind of triage can ease the regulatory
burden where little impact is expected and much can be gained
for marine mammal conservation, and can focus the regulatory
resources for activities with the most adverse effects.
Thank you very much for your attention.
[The prepared statement of Dr. Tyack follows:]
Statement of Peter Tyack, Biology Department,
Woods Hole Oceanographic Institution
Mr. Chair and distinguished members of the Committee, my name is
Peter L. Tyack. I am a Senior Scientist and Walter A. and Hope Noyes
Smith Chair in the Biology Department of the Woods Hole Oceanographic
Institution in Woods Hole, Massachusetts. Thank you for the opportunity
to provide my views on H.R. 2693, a bill to reauthorize the Marine
Mammal Protection Act (MMPA).
I have been fascinated since I was a child with the social behavior
of marine mammals and how they use sound to communicate and explore
their environment. I have spent much of the last 25 years following
these animals at sea, listening to their sounds and watching their
behavior. As I started my career in basic research it never occurred to
me that chasing my personal interests would ever become central to such
an important policy issue.
In my testimony I address issues concerning section 13 of H.R. 2693
on the definition of harassment takes under the MMPA, especially those
for scientific research and section 14 on incidental takings of marine
mammals, with special reference to incidental effects of manmade noise.
I would like to start my testimony by congratulating the House
Resources Committee for correcting what I consider to be serious
problems with the definition of harassment in H.R. 1835 and 1588 and
for correcting problems with the authorization process for incidental
takes. I still have some suggestions for improvements in both areas,
but I believe that this bill corrects problems with the current MMPA
and is much better than the changes proposed under H.R. 1835 and 1588.
Introduction
Three committees of the National Research Council (NRC) of the
National Academy of Sciences have reviewed issues concerning low
frequency sound and marine mammals. Each of these NRC committees has
published a report:
National Research Council (NRC). 1994. Low-Frequency Sound and
Marine Mammals: Current Knowledge and Research Needs. National Academy
Press, Washington, D.C.
National Research Council (NRC). 2000. Marine Mammals and Low-
Frequency Sound: Progress Since 1994. National Academy Press,
Washington, D.C.
National Research Council (NRC). 2003. Ocean Noise and Marine
Mammals. National Academy Press, Washington, D.C.
I was a member of the first two committees and reviewed for the NRC
the report produced by the third committee. I would like to take this
opportunity not only to give my personal views, but also to reiterate
some of the repeated suggestions of the NRC committees for changes to
the MMPA.
Suggested rewording of incidental take authorization for effects of
noise.
When the MMPA was first written, it emphasized takes in commercial
fisheries. Certainly no one at that time was thinking about whether the
regulatory process would work for issues such as incidental harassment
takes resulting from unintentional exposure to noise. Nor was there
much experience with issues under NEPA of whether the impacts of entire
activities needed to be evaluated together, or whether it was better to
authorize each time a ``take'' was possible.
Since the MMPA was passed, many studies have demonstrated that
marine mammals respond to ships, dredging, icebreaking and
construction, and sound sources such as pingers, air guns, and sonars.
Most of these sound sources are currently unregulated simply because
NMFS chooses not to enforce the prohibition against taking marine
mammals by harassment. I doubt that many of these activities could find
a regulatory procedure under the current wording of the Marine Mammal
Protection Act that would allow activities with negligible impact while
controlling those that might have an adverse impact. As has been
pointed out by each of the three National Academy reports on this
topic, the dominant source of manmade noise in the ocean is the
propulsion sounds from ships. Yet this has not been regulated by NMFS.
As the National Academy 2000 report Marine Mammals and Low-frequency
Sound put it:
If the current interpretation of the law for level B harassment
(detectable changes in behavior) were applied to shipping as
strenuously as it is applied to scientific and naval
activities, the result would be crippling regulation of nearly
every motorized vessel operating in U.S. waters. (p. 69)
One response to this conundrum is for each activity to seek special
exemptions if their activities become targets of regulation. However,
the National Academy 1994 report Low-Frequency Sound and Marine Mammals
discouraged that approach:
``However, it seems unreasonable that an exemption from the
``take'' prohibitions of the MMPA should be available for some
human activities, including some that kill marine mammals,
without being available for other human activities whose goal
may include the acquisition of information of potential value
for the conservation of marine mammals.'' (p 38)
The first two reports of the National Academy of Sciences on Marine
Mammals and Low Frequency Sound specifically suggest a broader solution
to this problem: removing the requirements for small numbers of takes,
while retaining a criterion of negligible impact:
Reword the incidental take authorization to delete references
to ``small'' numbers of marine mammals, provided the effects
are negligible. (p. 39)
Low frequency Sound and Marine Mammals (1994)
In addition to making the suggested change in the level B
harassment definition, it would be desirable to remove the
phrase ``of small number'' from MMPA section 1371(a)(5)(D)(i).
If such a change is not made, it is conceivable under the
current MMPA language there would be two tests for determining
takes by harassment, small numbers first, and if that test were
met, negligible impact from that take of small numbers. The
suggested change would prevent the denial of research permits
that might insignificantly harass large numbers of animals and
would leave the ``negligible impact'' test intact. (p. 71)
Marine Mammals and Low-frequency Sound (2000)
My understanding of the judge's preliminary ruling in the legal
challenge to operation of the SURTASS LFA sonar, NRDC v Evans, is that
the judge ruled against the interpretation followed by NMFS that
``small'' can be interpreted in terms of population size, and exactly
following the fears of the National Academy panel, ruled that the
current MMPA language does require both negligible impact and small
numbers, where the meaning of the word small could not be interpreted
in terms of size and status of populations.
The restriction in the MMPA authorizations for incidental takes to
``a specified geographical region'' may also rule out this
authorization process for most impacts of noise. If ``specified
geographical region'' is taken to mean areas small enough to involve
the same assemblage of species and oceanographic conditions, then the
requirements of the incidental take authorizations may be incompatible
with the NEPA requirement to consider all cumulative uses of a system.
Many kinds of sound sources are installed on a large number of vessels,
each of which may cross the ocean in weeks. Many marine mammals also
migrate thousands of miles through very different habitats. This makes
it difficult to specify a geographical region for a whale that may be
in the Caribbean one day, and off New England a few weeks later.
Different marine mammal populations have boundaries that differ
according to the ecology and migratory patterns of the species. This
makes it impossible to identify a unique region that is homogeneous for
all marine mammals, much less other aspects of the marine ecosystem. If
the wording specifying a geographical region is to be reconciled with
the potential numbers and movements of both the animals and the noise
sources, then the region must be specified in terms of the scope of the
activity, not homogeneity of the ecosystem.
The propulsion sounds of ships elevate the ambient noise over the
world's oceans, and this global impact is likely to reduce the ability
of whales to detect calls at a distance. I see no process by which such
takes could be authorized under the current wording of the MMPA. Depth
sounders and fish finders have sounds that do not carry as far, but
they are used by tens of thousands of vessels. These sounds have the
potential to disturb marine mammals, and therefore may take animals by
harassment, but did Congress intend to require authorization for each
user? How far could a vessel go before its takes move out of the
``specified geographical region?'' Oceanographic research, much of
which uses motorized vessels and uses sound as a tool to explore the
ocean, also has a global scope, and may be difficult if not impossible
to authorize under the current regulatory procedures.
I support the changes proposed in H.R. 2693 to remove the
conditions of ``small numbers'' and ``specified geographical region''
in the wording of the incidental take provisions of the MMPA. I believe
that as long as a sharp focus is maintained on the issue of negligible
impact, these changes would make the process work for effects of noise
on marine mammals, while still protecting marine mammal populations
from adverse impacts. Since millions of sound sources such as depth
sounders and the propulsion noises of every motorized vessel could
cause harassment takes under the current definition, I believe that it
will be essential for the process to authorize general activities,
rather than individual vessels or sound sources. This is incompatible
with restricting the authorization to ``small numbers,'' if this is
taken literally to mean just a few individuals, or ``specified
geographical region,'' if this is taken to mean small areas.
Definition of harassment
The current definition of level B harassment in the MMPA is:
``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.''
The 1994 NRC report on Low Frequency Sound and Marine Mammals
succinctly reviewed the problem of how harassment has been interpreted
under the MMPA:
Logically, the term harassment would refer to a human action
that causes an adverse effect on the well-being of an
individual animal or (potentially) a population of animals.
However, ``the term ``harass'' has been interpreted through
practice to include any action that results in an observable
change in the behavior of a marine mammal ``.'' (Swartz and
Hofman, 1991). (p. 27)
The 1994 NRC report goes on to note that many minor and short-term
behavioral responses of marine mammals to manmade stimuli are simply
part of their normal behavioral repertoire. There is clearly a need for
some standard of negligible effect, below which a change in behavior is
not considered harassment.
The change in the definition of level B harassment proposed by the
Administration and in H.R. 1835 is:
``disturbs or is likely to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of natural
behavior 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.''
As a biologist who has studied the behavior of marine mammals for
more than 25 years, I find this wording confusing, and I do not see how
it addresses the problem identified by the NRC. The last phrase added
to the definition does add a criterion of significant alteration.
However the point of the NRC reports was biological significance, a
disruption that could have an adverse impact. My dictionary defines
significant as ``likely to have influence or effect.'' The addition of
the word ``significant'' in the new definition therefore does not give
the same standard as suggested by the NRC. As our techniques to study
marine mammals have grown in sophistication and sensitivity, it is now
possible to demonstrate statistically significant alerting or orienting
responses that in my opinion fall well below the negligible impact
standard.
I find the addition of the word ``abandoned'' particularly
confusing in the new definition. It certainly makes sense to add a
criterion for abandonment of critical habitat, but what does this
wording mean for behavior patterns? A sperm whale or elephant seal can
dive for an hour or more, but any marine mammal that abandons surfacing
behavior cannot breathe. If it abandons surfacing for more than a few
hours, it is certainly dead. If a sperm whale group is sheltering a
young calf from a killer whale attack, even a momentary abandonment of
the behavior could be lethal. Calves may be able to survive for days or
weeks if their mother abandons nursing, and many whales could survive
for years without feeding, but what is the time period implied by
``abandon.'' My understanding of ``abandon'' is that it means a
permanent change. By this definition, the ``abandonment'' wording turns
level B harassment into a lethal take. Far from distinguishing
negligible from potentially significant effects, it muddies the waters
further.
Another problem with the use of the term ``abandon'' is that I take
it to mean ``giving up''--a 100% cessation of an activity. Yet since
the definition of harassment also applies to stocks, this definition is
not conservative enough for actions that may affect a large portion of
a stock. For example, suppose an activity caused a 50% reduction in
foraging rates in a majority of the population, or caused animals to be
50% as effective in finding a mate for breeding. Such reductions would
not ``alter'' the form of the behavior, nor would they meet an
abandonment criterion, but few populations could sustain such changes
on a long term basis.
I support the definition of harassment proposed for section
3(18)(A) (i) and (ii) in section 13 of H.R. 2693. The definition in
section (ii) closely follows the NRC definition. The primary difference
is the replacement of ``meaningful'' as a modifier for disruption with
``biologically significant'' and deleting the phrase ``biologically
significant'' from the modifier for the kinds of activities. I believe
that this follows closely the meaning of the definition written by the
NRC committee.
I am however very concerned that the harassment definition proposed
for section (iii) retains the problematic old harassment definition for
activities directed at marine mammals, including scientific research
directed at marine mammals. While there is a process to permit such
research, retaining the old definition for activities directed at
marine mammals will hold scientific research that enhances the survival
or recovery of species or stocks to a stricter standard than activities
that harm marine mammals and do not help them. This does not make
sense. The only case that in my opinion justifies a lower level of
regulation involves takes for scientific research that enhances the
survival or recovery of species or stocks. The proposed changes in the
definition of harassment for activities directed at marine mammals will
perversely have the opposite effect.
NMFS has suggested retaining the old harassment definition for
activities directed at marine mammals so that they can more easily
prosecute cases against businesses such as those that charge tourists
to swim with wild dolphins. I believe that any of the proposed
harassment definitions fit very well these cases where people
intentionally pursue marine mammals and annoy them with clear
disruption of behavioral patterns. It is particularly strange that NMFS
suggests retaining the old broad definition, when a senior NMFS
enforcement attorney stated to the 2002 Annual Meeting of the Marine
Mammal Commission ``the potential to disrupt behavioral patterns, at
one level, it is a great definition because you go out, you know, we
can get whatever we want because it is a very broad definition, but
when you get down to the prosecution level, it is too broad.'' The real
problem with harassment in my opinion is that NMFS has not shown the
will to enforce the prohibition against harassment and to prosecute
cases against growing industries based upon harassing marine mammals in
the wild. It would be a tragedy for scientific research to be excluded
from corrections in the definition of harassment as cover for NMFS'
unwillingness to enforce the prohibition against harassment. If the
definition of harassment causes problems with prosecution against
commercial activities directed at marine mammals, which I contest, then
the solution should be limited to this narrow situation and should be
worded so as not to impact research directed at marine mammals.
I would like to take this opportunity to reiterate the suggestion
of the National Academy of Sciences second report (2000) on Marine
Mammals and Low Frequency Sound on the definition of level B
harassment:
``NMFS should promulgate uniform regulations based on their
potential for a biologically significant impact on marine
mammals. Thus, level B harassment should be redefined as
follows:
LLevel B--has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing meaningful
disruption of biologically significant activities,
including, but not limited to, migration, breeding, care of
young, predator avoidance or defense, and feeding.
The Committee suggests limiting the definition to functional
categories of activity likely to influence survival or
reproduction. Thus, the term ``sheltering'' that is included in
the existing definition is both too vague and unmeasurable to
be considered with these other functional categories.'' (p 69)
This definition was written by scientists. Since ``meaningful
disruption'' is not defined, and since ``biologically significant'' has
a more specific meaning to biologists, I have no problem with the minor
changes in wording proposed in H.R. 2693 to fit legal and legislative
requirements.
The definition of harassment must take into account our lack of
knowledge about the ways in which behavioral changes may influence
marine mammals. For example, prolonged or repeated harassment may lead
to physiological changes that do not qualify as injury, but that may
indicate the potential for adverse effects. Prolonged changes in
behavior that are outside of the normal behavioral repertoire of a
species may also trigger concern even if the effect on health is not
immediately obvious. But if the definition of harassment is to be
changed, the primary focus should be on biological significance in a
way that clarifies the need for a negligible impact standard. I do not
think that the changes proposed by the Administration, in H.R. 1588 and
in H.R. 1835 for the definition of harassment succeed in this task, but
I support the definition of harassment in (18)(A)(ii) of section 13 of
H.R. 2963, which closely follows that suggested by the National
Research Council in any amendments to the MMPA.
Problems with permitting scientific research on marine mammals.
As a biologist personally concerned with protecting marine life, I
believe that double standards in the MMPA have led to a particularly
counterproductive situation for permitting scientific research designed
to protect marine mammals. The permitting process was created to allow
an exemption for scientific research from the MMPA prohibition on
taking marine mammals. The dirty secret of the MMPA is that the
prohibition on unintentional takes is ignored more often than it is
regulated and enforced. For example, ships regularly collide with
marine mammals and often kill them. So many highly endangered right
whales are killed by vessel collision, that population models predict
this additional mortality may drive the species to extinction. Yet
there is no regulation of this risk, nor to my knowledge has any ship
been prosecuted for striking a whale and killing it. It is ironic that
far from exempting research from an effective prohibition, NMFS has
grown an elaborate process for permitting negligible harassment takes
by researchers, while ignoring widespread and predictable lethal takes
caused by activities that do not benefit marine mammals.
As early as 1985, NMFS stated in its Annual Report on the MMPA that
``one of the most extensive administrative programs in NMFS is the
permit system that authorizes the taking of marine mammals for
scientific research and public display.'' I understand that today the
NMFS Permit Office has 7 personnel devoted to research permits, but
only two devoted to all other authorizations for incidental taking.
From my perspective, this is backwards. Scarce regulatory resources
should only be devoted to minor harassment takes for research after the
much more significant takes of activities that do not benefit marine
mammals are controlled by regulations that are effectively enforced.
It has been recognized for over a decade that the regulatory focus
on research activities is interfering with research needed to obtain
critical information to evaluate risk factors for noise exposure in the
sea. As the 1994 National Academy report on Low-frequency Sound and
Marine Mammals put it:
Scientists who propose to conduct research directed toward
marine mammals are aware of the permitting requirements of the
MMPA and of the Endangered Species Act (ESA) and the associated
regulations. Most of their research can be conducted under the
scientific permitting process. They routinely apply for and
obtain such scientific research permits. However, the lengthy
and unpredictable duration of this process can create serious
difficulties for research''. In addition to permit delays,
certain types of research that are considered ``invasive'' or
``controversial'' either are not allowed under the current
permitting process or may require an Environmental Assessment
or even an Environmental Impact Statement under the National
Environmental Protection Act (NEPA). Such a regulatory burden
actively discourages researchers from pursuing those lines of
study. (p 29)
The committee strongly agrees with the objective of marine
mammal conservation, but it believes that the present emphasis
on regulation of research is unnecessarily restrictive. Not
only is research hampered, but the process of training and
employing scientists with suitable skills is impeded when
research projects cannot go forward. Experienced researchers
are the ultimate source for expanding our knowledge of marine
mammals. A policy that interferes with the development of this
resource appears to be self-defeating. (p 30)
Things were bad in 1994, but they have recently become much worse.
The delays for permitting have become much longer, over 21 months in
some cases. Ironically, the more serious the conservation problem
addressed by a research project, the more likely the project is to be
delayed. In addition, the judge in a recent court case involving my
research permit ruled that all acoustic research on marine mammals is
controversial. This led him to rule that any permit for acoustic
research requires an accompanying Environmental Assessment or
Environmental Impact Statement. This decision means that all of the
research that can help resolve the marine mammal issues raised by the
National Academy reports is subject to much more regulatory burden than
before. Unless Congress changes the regulatory process or provides new
funds to the NMFS Office of Protected Resources to conduct the analyses
required under NEPA, the permitting process will not only discourage
research, but may make it almost impossible to conduct some research
that has negligible effects and is urgently needed for conservation
biology.
Let me illustrate with an example from the research of Scott Kraus,
a biologist at the New England Aquarium who has studied North Atlantic
right whales for decades under a series of research permits from NMFS.
In August of 2001, he applied for a new permit, as his old one was set
to expire 31 December 2001. In November 2001, after the end of the
public comment period, the Permit Division received a letter from a
self-styled ``environmental warrior'' claiming, incorrectly in my
belief, that the research would harm right whales. In early December
2001, operating under his old permit, Kraus started aerial surveys to
keep ships from hitting whales, and he was told the biological opinion
for the new permit was almost done. Kraus never received his permit by
the time his old one expired, and on 24 January 2002, NMFS informed him
that they would defer decisions on a permit until an Environmental
Assessment was conducted following NEPA rules. This was a complete
surprise for Kraus, who had to cancel a research program designed to
develop whale-safe lines for fishing gear. During 2002, at least eight
right whales entangled in fishing gear, and six were thought to have
died. It is now July 2003. Kraus had to cancel another attempt to
repeat the whale-safe fishing line project in 2003, and he still has no
prediction from the NMFS Permit Division as to when his permit will be
issued. There may be a new determination of a need under NEPA for an
Environmental Impact Statement for his permit, not just an
Environmental Assessment.
Let me recap. The survival of right whales in the North Atlantic is
threatened because so many are killed from entanglement in fishing gear
and from vessel collision. Unlike any airline, as a scientist, Kraus
needs a permit to fly over right whales, in case the whales might hear
the plane and somehow be disturbed. Delays in permitting endanger his
ability to fly surveys designed to warn ships of the presence of
whales. The ships that regularly kill whales are subject to no
regulation, and travel wherever they please at any speed through
critical habitats of the most endangered whale in U.S. waters. In spite
of some fisheries regulations, whales are dying in fishing gear at
alarming rates. Fishermen can continue to place lethal fishing gear
where it can kill whales, but Kraus cannot test new ideas for whale-
safe fishing gear, because the environmental paperwork for his research
is not sufficient, even after 23 months of delay. Is there something
wrong with this picture?
I have also personally had experience with the mad world in which
Federal actions block the research needed to protect marine mammals
from poorly regulated impacts of human activities. We cannot protect
marine life from intense underwater noises until we get better at
detecting when a marine mammal or sea turtle is in the danger zone.
Recently, there have been promising developments for whalefinding
sonars. These are high frequency sonars that work like fish finders to
detect echoes from animals close enough to be harmed by unintentional
exposure to intense sounds. When these whalefinding sonars reached the
point in their design process where they were ready to be tested at
sea, I submitted an application to amend my research permit to test how
well a whalefinding sonar could detect migrating gray whales. We know
how migrating gray whales respond to noise, and I expected little if
any behavioral response to the whalefinding sonar. The study was
designed with very sensitive methods to detect whether whales avoided
the sound source by a hundred meters or so, and I requested permission
to ``take'' the whales by harassment.
The Permit Division of NMFS issued the amendment to my permit in a
timely fashion, but only after deciding that the amendment did not
require a new environmental assessment. The environmental assessment
conducted by NMFS for my original permit had already covered testing a
whalefinding sonar on whales. The wording allowing ``takes'' of gray
whales alarmed an animal rights advocate in Australia, who gathered a
few small fringe groups in the U.S. to request an injunction against
the research the day before the study was to begin. The study was
delayed by a temporary restraining order and the entire field team and
one of the research vessels in our national oceanographic fleet were
tied up for most of the month planned for the research. In the end, the
judge ruled that the amendment to my permit was invalid because the
NMFS Permit Division had not prepared a new Environmental Assessment
under NEPA not just for my original permit, but for each major
amendment to the permit. Hundreds of thousands of taxpayer dollars were
wasted and we are a year behind in developing more effective methods
for monitoring marine mammals.
The NMFS Permit Division of the Office of Protected Resources has
just nine personnel and is increasingly inundated. In 2001 they advised
scientists applying for a permit to expect processing times of at least
90 days for most marine mammal permits with an additional 135 days for
permits affecting endangered species. However, some permits have been
subject to greater delays. NMFS currently advises scientists to allow
at least 6 months for processing a permit, longer for research
involving endangered species. In the cases of my and Kraus' permits, it
appears that last minute complaints by a fringe extremist could trigger
a ``public controversy'' condition requiring exhaustive environmental
assessments. Given these precedents, I consider that only permits
backed by environmental analyses acceptable under NEPA are solid enough
to protect research from nuisance lawsuits. Due to the increasing
number of scientific research permits, and the renewed emphasis on NEPA
analysis, some permit applications may be delayed much beyond 6 months,
with dramatic increases in the burden on the Permit Division and on the
applicants. I can personally attest to the heroic efforts of the staff
of the Permit Division to cope with this disastrous situation, but the
Division requires additional support and staff to keep the permitting
process afloat.
Congress has in the past few years taken strong steps to fund
research on urgent conservation problems such as declining populations
of Steller sea lions, or the threat of extinction for the North
Atlantic right whale, and I applaud these actions. Yet both of these
research efforts were delayed by more than a year because of delays in
the permitting process for scientific research. If Congress wants to
support critically needed conservation research, it is not enough to
fund the science. Congress will also have to authorize significant
increases in funding to the Permit Division.
The time required to obtain a research permit has swelled from 3
months to 6 months to 21 months and counting. A very important change
suggested by the NRC would be for Congress to specify a fixed maximum
time for NMFS to process permits and authorizations. The 1994 NRC
report suggested 10 days for initial processing, 30 days for the public
comment period, and 10 days to issue or deny a permit for scientific
research. The Permit Division used to use a more liberal 30 days for
initial review, 30 days for the public comment period and a concurrent
45 days for review by the Marine Mammal Commission, and 30 days to
issue or deny the permit. This totals to 105 days. I urge Congress to
follow the recommendation of the NRC and set deadlines of 3-4 months
for issuing a permit for scientific research.
The failure of NMFS to prevail in recent challenges to their
attempts to exempt the permitting process from further environmental
review under NEPA suggests the need for Environmental Assessments or
Environmental Impact Statements for each activity that may be permitted
or authorized. I cannot imagine that even a newly invigorated Permit
Office could perform these analyses for every project. The only way for
the permitting process to proceed in a timely fashion given the
requirements for environmental analyses under NEPA will be for the
Permit Division to conduct programmatic environmental analyses for most
typical research activities well before applicants request a permit. My
understanding is that it typically takes several months and $50,000-
$100,000 to produce an Environmental Assessment, and $500,000-
$1,000,000 and 1-2 years to produce an Environmental Impact Statement.
This additional workload must be met while the ongoing flow of permit
applications is expedited. If NMFS is to issue timely and legally
defensible permits, the permit division and other supporting divisions
in the Office of Protected Resources will need additional program
staff, with specialists in many areas such as environmental law, NEPA,
marine mammal population biology, acoustics, animal health and welfare.
Congress will also have to authorize significant increases in funding
for the Office of Protected Resources to hire contract personnel or to
outsource the analyses required under NEPA and the ESA.
In order for research not to be over-regulated compared to
activities with adverse impacts and no benefit to marine mammals, these
kinds of programmatic environmental analyses are urgently needed for
setting regulatory priorities not just for research, but for all
incidental taking. The suit against my test of a whalefinder sonar
shows how important it could be to researchers for non-research
activities to undergo similar NEPA review. The whalefinding sonar has a
frequency range and source level similar to many depthsounding and
fishfinding sonars. If these other sonars had undergone programmatic
NEPA analyses, these would have shown that the whalefinder would have
even less impact because of the way it was operated.
One suggestion for reducing the regulatory burden on scientific
research involves including scientific research under the definition of
harassment for military readiness. This is not helpful for research on
marine mammals, and could create new problems for marine mammalogists.
The U.S. Office of Naval Research is the primary funding agency for
basic marine mammal research in the US. In spite of the excellent
reputation of ONR as a science agency, the location of this agency in
the Navy has led to controversy about whether the Navy biases the
research effort or compromises the integrity of the scientists it
funds. Fringe groups have even tried to drum up support by conjuring up
conspiracy theories claiming that critical conservation biology
projects are secret Navy projects to target marine mammals. If Congress
were to change the wording of the MMPA to lump scientific research
under military activities, this would increase concern about the
relationship between the military and marine mammal research, and could
accelerate the attacks by anti-research animal rights groups.
I must emphasize that many of the most serious problems with marine
mammal research permits have not been MMPA problems as much as NEPA
problems. Changing the definition of harassment will not affect the
need for marine mammal researchers to obtain permits for their
scientific research. Whatever the definition of harassment, I would
apply for a permit for my research on marine mammals. Most scientific
journals require permits as a condition of publication. The details of
the definition of harassment are not the main problem for research
permits; the problems I face as a scientist involve the significant
cost of preparing permit applications, the uncertain delays of the
permitting process, and the vulnerability of the permits to procedural
challenges. As I mentioned above, the Office of Protected Resources
will require a considerable injection of funds and highly skilled
personnel to be able to issue permits in a timely fashion while
overseeing the timely production of the NEPA documentation required to
back up research permits.
Special exemptions are not the solution to problems with the MMPA
During the past several years, there have been efforts to address
very real problems with the MMPA. Congress today is attempting to fix
demonstrated problems with authorization under the MMPA of incidental
takes, especially harassment takes. One way to deal with this problem
is to tailor special exemptions for groups that have regulatory
problems. From 1972-2002, this process has created a complex tangle of
different authorizations for taking marine mammals under the MMPA. The
basic goals of the Act clearly have not been well served by this
proliferation of different standards for regulating takes for different
activities. As the NRC said in 1994, ``it is difficult to understand
applying different, and less stringent, rules to activities that kill
marine mammals than to activities that are known to benefit them or to
have negligible effects on them.''
I do not think that complicating the Act by creating yet another
harassment definition for military readiness is the best answer. I
strongly urge Congress to respond to the problems highlighted by DOD by
trying to fix the underlying flaws in the regulatory procedures of the
MMPA for all activities before granting a special exemption that does
nothing for marine mammal conservation and leaves many other producers
of sound in the sea with no way to meet the regulatory requirements. If
Congress restricts this year's solution to military readiness, next
year they will be likely to have to respond to similar requests from
some other group such as the seismic or shipping industries. I believe
that it would be much better if Congress rejects the special exemption
approach, and instead corrects the deficiencies in the MMPA so that one
or two simple regulatory processes for authorizing incidental takes
could be applied evenly to all seafaring activities.
If done correctly, the regulations might be able to include all
activities in a streamlined regulatory approach that focuses attention
on those situations that pose the most risk to marine mammal
populations. I believe that the provisions of sections 13 and 14 of
H.R. 2693 go a long way to addressing the problems that have been
identified in the MMPA. These provisions are much closer to the
recommendations of the NRC than the provisions of H.R. 1588. I applaud
the Resources Committee for resisting the drive to add special
exemptions to the MMPA for specific activities, but instead for
considering more general modifications that correct problems for
regulating harassment and incidental takes.
Regulations to protect marine mammals need to be drawn to focus scarce
regulatory resources on situations where ``takes'' are most
likely to risk adverse impacts to marine mammals.
One of the most important suggestions of the NRC reports on marine
mammals and ocean noise is to regulate harassment in the same way for
all activities, allocating regulatory effort where harassment takes are
most likely to risk adverse impacts to marine mammals. Currently we are
far from this goal. For commercial fisheries, section 118 of the MMPA
allows incidental taking of marine mammals as long as there is
negligible impact from incidental mortality and serious injury. NMFS
interprets this as an exemption for commercial fisheries from the
prohibition of harassment. Harassment takes are also ignored for
effects of propulsion noise from vessels, which accounts for more than
90% of the acoustic energy humans put into the sea. Many other users of
sound in the sea, from the Navy to geophysical contractors to academic
oceanographers, find themselves in a no-man's land, where the
appropriate regulatory process for incidental harassment takes is
obscure. So far the solutions of the regulatory agencies have fared
poorly in court.
In my opinion, the best way to direct NMFS to allocate its
regulatory efforts to the most significant problems is to require
evaluation of the potential impacts of all seafaring activities on
marine mammals. A consultation process is needed to tier all sea-faring
activities into categories for potential harassment: activities
unlikely to take, activities with takes of negligible impact, and
activities where the takes might have more than negligible impact in
some settings. As I discussed in the section on scientific research
above, this kind of NEPA analysis is required to protect activities
from nuisance litigation. I believe that in the current climate, even
harmless activities are vulnerable to legal challenge unless covered by
this kind of NEPA analysis and MMPA authorization. The provisions of
H.R. 2693 could be improved by adding a requirement that all activities
that might take marine mammals should consult with NMFS, so that all
potential takes to be accounted for.
The provisions of H.R. 2693 are well suited to creating a simple
streamlined process for authorizing low impact activities, with
increased regulation scaling with increased probability of impact. Each
kind of sea-faring activity that might take marine mammals by
harassment should be required to consult with NMFS to perform an
environmental assessment to evaluate the potential for taking, and if
there are takes, their impact on the population. NMFS should issue
rules indicating which activities have a remote enough likelihood of
takes not to require any regulation. A general authorization process is
essential for activities that may take marine mammals, but that would
have negligible impacts. Activities that are not eligible for this
general authorization would need to go through an incidental take
authorization process on a case-by-case basis. For activities that
might cause harassment takes beyond the range of detection of the
vessel, a monitoring program could be established to study animals at
different ranges from the activity in order to better estimate the
number of harassment takes. As long as the restrictions on ``small
numbers'' and ``specified geographic region'' are removed from the
existing incidental take authorizations, as proposed under H.R. 2693, I
believe that these existing procedures would work for this kind of
case-by-case authorization.
I applaud the House Resources Committee for its efforts to
establish this kind of streamlined general authorization process in
section 14 of H.R. 2693. My primary concern about this proposal is that
I doubt the rapid response mandated for the authorization would be
possible without prior programmatic analyses under NEPA to determine
negligible impact. I believe that this general authorization procedure
would work best after earlier consultation and programmatic
environmental review of the potential for different kinds of activities
to cause adverse impacts.
I urge Congress to develop a consultation process to require NMFS
to tier activities by expected impact with a streamlined process for
general authorization of activities with negligible impact and a
requirement for regulatory effort to be directed to cases with the
highest expected adverse impact. The NMFS Office of Protected Resources
will require a considerable injection of funds and skilled personnel to
participate in these broad NEPA analyses.
Suggested unified procedure for authorizing incidental takes under the
MMPA
The consultation and authorization procedure I have just outlined
bears similarities with the incidental take provisions of the MMPA for
commercial fisheries. This regime for regulating fishery takes that may
kill animals has been quite successful in highlighting situations where
populations are threatened by fishing. NMFS is required to categorize
fisheries as to whether they have frequent, occasional, or remote
likelihood of causing mortality or serious injury. Each fishing vessel
receives an authorization for incidental takes subject to conditions.
As long as a fisher registers with this authorization process, complies
with the conditions, and reports any takes, s/he is exempt from the
prohibition against taking. Fishers in low impact fisheries have a
simple and streamlined regulatory process that protects them from
prosecution in case of an unlikely accident, and regulation ramps up
corresponding to the threat, up to closing down fisheries that threaten
the survival of marine mammal populations.
The 1994 National Academy Report on Low-frequency Sound and Marine
Mammals approves of the way this regime sets priorities for regulation:
The proposed regime is designed to redirect regulation to focus
on human activities with the largest impact on marine mammal
populations, scaling the extent of regulation to the risk the
activity poses to populations. (p 35)
However, the regime for regulating lethal takes or serious injury
under section 118 of the MMPA has a flaw that may prove fatal to some
marine mammal populations, such as right whales, where significant
incidental mortality stems from activities other than fishing. The
solution to this problem suggested by the NRC 2000 report is to broaden
this regime to include other activities that might kill or seriously
injure marine mammals. Obvious examples include vessel collision,
underwater explosions, and spills of toxic compounds. The MMPA as
currently written specifies a process to reduce takes from fisheries
whose lethal take exceeds PBR, but it is silent as to how to regulate
incidental lethal takes from activities other than fishing. If there
are situations where non-fishery takes may be as significant as takes
by fisheries, the MMPA must be modified to clarify how to regulate all
lethal takes and serious injury, whether from fisheries or other
sources. When vessels strike and kill whales, for example, this
mortality must either be subtracted from the PBR or these non-fishing
activities must be incorporated into a process for allocating takes.
Section 118 of the MMPA includes a comprehensive program to monitor
takes from fisheries, but there is no such program to guarantee that
stock assessments accurately estimate mortality from non-fishery
activities. If mortality caused by these non-fishing activities is not
included in the PBR regime, then the regime will not work properly to
protect marine mammal populations. The strict monitoring requirements
for fisheries will not protect populations from the effect of non-
fishery mortality unless these sources of mortality are as well
documented as mortality from fisheries.
Keeping the MMPA up to date with the threats to marine mammals of the
21st century
The impacts of pervasive and subtle human influences such as
contaminants and noise are much more difficult to identify than death
by harpoon or injury in nets. As these impacts become more important
compared to whaling and bycatch, the MMPA must be adjusted to deal with
these forms of habitat degradation that cannot always be easily or
effectively regulated under the prohibition on taking. The PBR process
limits lethal takes to a number small enough not to threaten the
population. It is more difficult to set a limit on harassment takes,
since these may vary greatly in impact, and since the effect on
population growth may be difficult to predict. Exposure to contaminants
is even more difficult to treat as a take. Ultimately, the significance
to the population of any take is the effect on the demography of the
population, the ability of the population to grow or remain a healthy
size.
I strongly encourage Congress to adopt wording requiring NMFS to
account for harassment or effects of contaminants conservatively in
terms of demographic effects on growth, survival or reproduction of
individuals and populations. As I discussed in the section of my
testimony on the definition of harassment, the best way to do this is
to define harassment in terms of biological significance of the take.
This is currently a challenging scientific problem, but the correct
wording should stimulate the appropriate science, while focusing
attention on the critical issue of keeping marine mammal populations
healthy. Ultimately a demographic accounting of harassment takes or
other threats would require population modeling that relates the dosage
of exposure to population parameters. There has been great progress in
this kind of population modeling in the past decade. However, right now
the critical analyses could not be performed for harassment takes
because we know so little about the extent of the exposure or its
impact.
The criteria for harassment takes need to acknowledge our ignorance
of the scope of exposure to harassing stimuli, and our ignorance of
many of the effects harassment may have on individuals and populations.
If we wait until the population has measurable declines, it is too
late. Therefore it is important to include indicators of adverse impact
in the criteria. These indicators may be physiological, behavioral, or
ecological, but must be linked to potential to affect demography.
Before we can estimate the impacts of subtle threats to marine
mammals, we must understand the extent of exposure, and the
relationship between exposure and impact. A critical aspect of the PBR
regime is that it exempts registered fishers from the prohibition on
taking as long as they accurately and fully report any takes. A similar
clause for all vessels that may be involved in harassment would
ultimately give scientists data needed to estimate exposures that may
cause harassment. A timely reporting requirement might also make it
easier to prosecute cases of intentional harassment, as failure to
report would violate the terms of the authorization.
Understanding the relationship between exposure to threats and
adverse impacts caused by the exposures will require a concerted
research program. I urge that Congress help streamline the regulatory
obstacles to this kind of research, and also to carefully consider the
best way to fund and organize this kind of research effort. This must
include a mechanism to encourage young scientists to become involved in
this critical area.
This kind of program would allow NMFS to identify situations where
1. LA stock was at risk from a particularly high number of takes.
2. LAn area or activity caused a high number of takes for a variety
of species.
3. LThere were particular hot spots of takes.
4. LThe cumulative takes pose a risk to the population
Where the sum of takes, lethal, injury, or harassment, pose a risk
to a population, this regime should require something like the take
reduction plans used to reduce the problem of fisheries takes. This
kind of regulatory regime would reduce the burden on activities that
pose little risk, while focusing attention on species, areas, or
activities that pose the greatest risk to the most endangered
populations.
Some may be concerned that the regulatory process I sketch out
would lead to reduced protection. It would certainly streamline the
regulatory process and make it more predictable for most activities,
but I agree with the National Academy (2000) report on Marine Mammals
and Low-frequency Noise that such a change would, if done correctly,
increase protection from the status quo. The current MMPA has
unbalanced criteria for authorization, allowing some fisheries to kill
animals with no requirement beyond reporting, while having no procedure
available to other activities to authorize more than a small number of
insignificant harassment takes. This does not meet the conservation
goals of the Act.
Conclusion
Mr. Chair, I sincerely appreciate your attention to this difficult
and complex issue. There are real problems with current implementation
of the MMPA in our changing environment. I believe that H.R. 2963 goes
a long way to fixing these problems, and I am convinced that Congress
and the responsible federal agencies can make real progress to create
permitting and authorization processes that are more predictable and
efficient, while improving the protection for marine mammals from
adverse impacts of human activities.
Thank you, and I look forward to your questions.
______
Mr. Gilchrest. Thank you, Dr. Tyack.
Dr. Worcester?
STATEMENT OF DR. PETER WORCESTER, OCEANOGRAPHIC RESEARCHER,
SCRIPPS INSTITUTION OF OCEANOGRAPHY, UNIVERSITY OF CALIFORNIA
AT SAN DIEGO
Dr. Worcester. Mr. Chairman, distinguished members of the
Committee, my name is Peter Worcester. I am a research
oceanographer at the Scripps Institution of Oceanography of the
University of California, San Diego. I very much appreciate the
opportunity to testify before the Committee on my views on the
Marine Mammal Protection Act reauthorization as it relates to
ocean science and the use of sound in the sea.
Any discussion of the use of sound in the sea must start
from one basic fact: The ocean is largely transparent to sound,
but opaque to light and radio waves. What does this mean? It
means that all of the tasks for which we use light and radio
waves in the atmosphere must be done using sound in the sea.
Some examples might help here. We assess fish stocks,
measure ocean bathymetry, communicate under water, transmit
data from sub-sea instruments, navigate, profile ocean
currents, and measure large-scale temperatures and currents.
Sound in the sea is not just noise. It is used for a wide
variety of valuable and important purposes.
With all of that said, what is the problem? The problem is
that the current regulatory procedures do not adequately
differentiate between activities that cause minor changes in
marine mammal behavior, having no adverse impact, and
activities that cause significant disruption of behaviors
critical to survival and reproduction. Further, as Dr. Tyack
noted, the current regulatory procedures are complex, fraught
with delays, costly in both time and money, and uncertain in
their outcome. The current regulatory structure makes obtaining
the necessary authorizations for using sound in the sea so
arduous that it is having a chilling effect on a wide variety
of important and valuable uses of sound in the sea as well as
on the research needed to improve our understanding of the
impacts of underwater sound on marine life.
Let me give you an example from a project in which I am
involved called the North Pacific Acoustic Laboratory. As one
component of this project, we sought the authorizations needed
to operate a low-frequency sound source off the north shore of
Kauai. The source had previously been operated for 2 years as
part of the Acoustic Thermometry of Ocean Climate Project,
which included an extensive marine mammal research program to
determine the effects, if any, on marine mammals. The short
summary of that research is that subtle effects were detected--
large whales could clearly hear the source--but none of the
marine mammal experts involved with the program felt that the
observed effects were biologically significant.
We started the process of seeking the required
authorizations in the spring of 1999. We finally completed the
process and were able to resume transmissions in late January
of 2002. It took nearly 3 years of my life and cost in excess
of half a million dollars to get the required permits.
I hope that this is an extreme example. Nonetheless, it is
clear that it is simply impractical for a single researcher or
small research group to undertake such an effort. I personally
would be unwilling to devote another 3 years of my life to such
an effort. I doubt that any funding agency would do so.
Research dollars are simply too scarce.
So what is the solution? First, the definition of Level B
harassment needs to be modified to focus on the biologically
significant disruption of behaviors critical to survival and
reproduction; that is, on adverse impacts rather than simply
undetectable changes in behavior.
Second, the provisions of the MMPA that limit requests for
an incidental taking or harassment authorization to small
numbers in a specified geographical region need to be removed,
while retaining the essential provision that the species or
stock must be negligibly impacted by the authorized activity.
Third, the MMPA needs to be modified to provide for the
issuance of general authorizations allowing for the use of
oceanographic instrumentation that is in widespread and ongoing
use for marine research and other valuable purposes; provided,
again, that any taking by harassment is unintentional and will
have a negligible impact on the affected species and stocks.
Finally, it would be helpful for the definition of research
for which scientific research permits can be issued to be
broadened to include all legitimate scientific research
activities, rather than being limited to research on or
directly benefiting marine mammals. Further, scientific
research permit procedures should be simplified and
streamlined.
The revised definition of harassment and the amendments
concerning the incidental taking of marine mammals contained in
H.R. 2693 are largely in accord with the majority of the
recommendations given above. I therefore strongly support H.R.
2693. I believe it would facilitate the constructive use of
sound in the sea, focus regulatory efforts on activities that
have biologically significant impacts on marine mammals, and
make it easier to do the research needed to improve our
understanding of the impacts of underwater sound on marine life
while continuing to protect marine mammals.
Although the MMPA changes discussed above are important,
they are not sufficient in and of themselves to address the
issues now facing the ocean science community with respect to
marine mammals. The current understanding of the effects of
sound in the ocean on the behavior and health of marine mammals
needs to be improved. A robust marine mammal research program
is absolutely essential to protecting marine mammals and
conducting other essential research in our oceans. As you
undertake the reauthorization process for MMPA, you should
consider the authorization of such a program.
I would like to close by stating that I sincerely
appreciate your attention to this complex and highly emotional
issues. I look forward to your questions.
[The prepared statement of Dr. Worcester follows:]
Statement of Peter F. Worcester, Ph.D., Research Oceanographer,
Scripps Institution of Oceanography, University of California, San
Diego
Mr. Chairman and distinguished members of the Committee, I am Peter
Worcester, a Research Oceanographer at the Scripps Institution of
Oceanography of the University of California, San Diego. I very much
appreciate the opportunity to testify before the Committee on my views
on the Marine Mammal Protection Act (MMPA) reauthorization as it
relates to ocean science.
Last year I testified before the Subcommittee on H.R. 4781, the
Marine Mammal Protection Act Amendments of 2002. In my testimony I
discussed the impact of the MMPA on oceanographic research using
acoustic methods and suggested amendments to the act intended both to
facilitate the constructive use of sound in the sea and to improve
regulatory efforts by focusing them on activities that cause
biologically significant disruption of marine mammal behaviors critical
to survival and reproduction, i.e., on adverse impacts.
Since that time others in the oceanographic community, including
Scripps Institution of Oceanography, Woods Hole Oceanographic
Institution, Lamont-Doherty Earth Observatory of Columbia University,
and the Consortium for Oceanographic Research and Education (CORE) have
expressed concerns similar to mine in testimony to Congress. The
recommendations made in their statements closely parallel those that I
made last year.
The revised definition of harassment and the amendments concerning
the incidental taking of marine mammals contained in H.R. 2693 are
largely in accord with the recommendations that I and others in the
oceanographic community have made, as will be discussed in detail
below. If enacted, I believe that they will both facilitate the
constructive use of sound in the sea and improve regulatory efforts by
focusing them on activities that have biologically significant impacts
on marine mammals.
I therefore strongly support H.R. 2693.
Sound in the Sea
Any discussion of the use of sound in the sea must start from one
basic fact:
The ocean is largely transparent to sound, but opaque to light
and radio waves.
Light travels only a few hundred meters in the ocean before it is
absorbed. Sound can travel long distances and with great speed
underwater. Marine mammals--whales, dolphins, seals--therefore rely on
sound to sense their surroundings, to communicate, and to navigate.
Similarly, oceanographers, fishermen, and submariners--in short, all
who work in the ocean--rely on sound to sense their surroundings, to
communicate, and to navigate. Fishermen, for example, use acoustic fish
finders to locate schools of fish. Oceanographers use sound in the sea
for a wide variety of purposes, including assessing fish stocks,
measuring ocean bathymetry, communicating underwater, transmitting data
from subsea instruments to the surface, navigating underwater,
profiling ocean currents, and measuring large-scale ocean temperature
variability. The U.S. Navy uses sound for many of these same purposes,
as well as to detect and track submarines and to locate mines.
Sound in the sea is not just noise. It is used for a wide variety
of valuable and important purposes.
With all of that said, what is the problem? The problem is that the
current regulatory procedures do not adequately differentiate between
activities that cause minor changes in marine mammal behavior having no
adverse impact and activities that cause significant disruption of
behaviors critical to survival and reproduction. Further, the current
regulatory procedures under the MMPA are complex and fraught with
delays, costly in both time and money, and uncertain in their outcome.
The current regulatory structure makes obtaining the necessary
authorizations for using sound in the sea so arduous that it is having
a chilling effect on a wide variety of important and valuable uses of
sound in the sea, as well as on the research needed to improve our
understanding of the impacts of underwater sound on marine life.
A project in which I am involved, called the North Pacific Acoustic
Laboratory, provides an example of the current regulatory process. As
one component of this project we sought the authorizations needed to
operate a low-frequency sound source off the north shore of Kauai. The
source had previously been operated for two years as part of the
Acoustic Thermometry of Ocean Climate (ATOC) project, which included an
extensive marine mammal research program to determine the effects, if
any, on marine mammals. The short summary of that research is that
subtle effects were detected. Large whales could clearly hear the
source, but none of the marine mammal experts involved with the program
felt that the observed effects were biologically significant.
We started the process of seeking the required authorizations in
the spring of 1999. We finally completed the process and were able to
resume transmissions in late January of 2002 (Fig. 1). It took nearly
three years and cost in excess of half a million dollars to get the
required permits!
I believe--hope?--that this is an extreme example. Nonetheless, I
believe that it is clear that the regulatory burden in this case bore
little relation to the potential environmental impacts of the project.
Our understanding of the effects of underwater sound on marine
mammals and the impact of the existing regulatory structure on
oceanographic research has been discussed in three recent National
Research Council reports:
National Research Council (NRC). 1994. Low-Frequency Sound
and Marine Mammals: Current Knowledge and Research Needs.
National Academy Press, Washington, D.C.
National Research Council (NRC). 2000. Marine Mammals and
Low-Frequency Sound: Progress Since 1994. National Academy
Press, Washington, D.C.
National Research Council (NRC). 2003. Ocean Noise and Marine
Mammals. National Academy Press, Washington, D.C.
These reports provide an important service in considering how the
MMPA could be modified ``for facilitating valuable research while
maintaining all necessary protection for marine mammals'' (NRC, 1994).
The suggestions made in these reports also provide useful guidance on
how the MMPA could be modified to facilitate other valuable uses of
sound in the sea, while maintaining protections for marine mammals.
Definition of Level B Harassment
The 1994 amendments to the MMPA included a definition of harassment
as ``any act of pursuit, torment, or annoyance which:
Level A--has the potential to injure a marine mammal or marine
mammal stock in the wild; or
Level B--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.''
Unfortunately this definition of harassment is somewhat ambiguous
and has at times been interpreted to mean that any detectable change in
behavior constitutes harassment. NRC (1994) notes that as ``researchers
develop more sophisticated methods for measuring the behavior and
physiology of marine mammals in the field (e.g., via telemetry), it is
likely that detectable reactions, however minor and brief, will be
documented at lower and lower received levels of human-made sound.''
NRC (2000) concludes that it ``does not make sense to regulate minor
changes in behavior having no adverse impact; rather, regulations must
focus on significant disruption of behaviors critical to survival and
reproduction.'' NRC (2000) suggests that Level B harassment be
redefined as follows:
``Level B--has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing meaningful disruption of
biologically significant activities, including, but not limited to,
migration, breeding, care of young, predator avoidance or defense, and
feeding.''
NRC (2003) expands on, rather than replaces, the recommendations
contained in the previous reports. All three NRC committees are
therefore in agreement that the definition of Level B harassment should
be modified to focus on the biologically significant disruption of
behaviors critical to survival and reproduction, i.e., on adverse
impacts rather than simply on any detectable change in behavior.
The revised definition of Level B incidental harassment proposed in
H.R. 2693 is:
``... any act that--
(ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing biologically significant disruption of
activities, including, but not limited to, migration, breeding, care of
young, predator avoidance, defense, or feeding...''
This definition is fully consistent with that recommended by the
NRC. I therefore strongly support the proposed change.
Incidental Takings--``Small Numbers''
Another key recommendation made in NRC (2000) is to remove the term
``small numbers'' from MMPA provisions that deal with the authorization
of incidental takings. Under current law, requests for an incidental
taking or harassment authorization apply to ``small numbers'' of marine
mammals of a species or stock of which the Secretary of Commerce must
find will be negligibly impacted by the authorized activity.
Until now, federal managers essentially have interpreted this as a
single requirement in the authorization process for incidental takes or
harassment of marine mammals. However, recent court decisions have
called that interpretation into question and if such a change is not
made, it is conceivable there would be two distinct and separate tests
for determining takes--small numbers first, and if that test were met,
negligible impact from the take of small numbers. The NRC-suggested
change would prevent the denial of research permits that might
insignificantly harass large numbers of animals and would leave the
``negligible impact'' test intact. The goal is to focus our efforts to
protect marine mammals on avoiding adverse impacts.
H.R. 2693's proposed removal of language concerning ``small
numbers'' responds to concerns raised by the NRC. I therefore strongly
support the proposed change.
Incidental Takings--``Specified Geographical Region''
Under current law, requests for an incidental taking or harassment
authorization apply to marine mammals in a ``specified geographical
region.'' The Secretary of Commerce must find marine mammals in a
specified geographical region will be negligibly impacted by the
authorized activity.
As was the case for ``small numbers,'' it is conceivable there
could be two distinct and separate tests for determining takes--
specified geographical region first, and if that test were met,
negligible impact. The suggested change would prevent the denial of
research permits that might insignificantly harass animals in more than
one geographical region and would leave the ``negligible impact'' test
intact. The goal once again is focus our efforts to protect marine
mammals on avoiding adverse impacts.
I therefore strongly support H.R. 2693's proposed removal of
``specified geographical region'' from the MMPA provisions that deal
with the authorization of incidental takings.
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 research needed to understand better the effect of human-generated
sound on marine mammals. This problem has been exacerbated in recent
months by legal decisions that could require extensive analyses under
the National Environmental Policy Act (NEPA) for any research that may
affect marine mammals, even in situations where there is widespread
agreement among federal managers and scientists that the research
activity has no potential to cause harm. As in the example given above,
scientists now face lengthy delays and significant additional expense
that threaten their ability to conduct research. In addition, the
situation is placing new burdens on the already stretched resources of
the National Marine Fisheries Service. The ocean science community is
urgently in need of a timely and predictable permitting or
authorization process that is not unnecessarily burdensome and provides
them with assurances that research will proceed in compliance with all
applicable laws, when the permit is issued.
One option may be to broaden the relatively streamlined Scientific
Research Permit procedure for research on or directly benefiting marine
mammals under section 104 of the MMPA. This procedure is currently
available only for marine mammal research, and any other scientific
research affecting marine mammals falls under the Incidental Harassment
Authorization (IHA) procedure or the lengthy rule-making procedure
leading to a Letter of Authorization (LOA). These procedures are time
consuming and burdensome at best, and the NRC (1994) has recommended
that the definition of research for which Scientific Research Permits
can be issued be broadened to include a wider range of research
activities.
Although such a change would be an important step toward a more
predictable process for ocean research, the existing procedure for
obtaining scientific research permits still is enormously time-
consuming and expensive for individual researchers. Today's experience
is that the costs of permitting and associated legal fees can become as
expensive as the research investment itself, leading inevitably to less
ocean research and a slowdown in scientific advancement and the
benefits that come from it. In addition, the chilling effect of this
overly-burdensome process is discouraging new researchers from pursuing
marine science, potentially weakening our human resource capabilities
in an area that has great potential for new discoveries and large
information deficits. I would ask that the Committee look at ways to
further simplify and streamline the process and address the concern of
the NRC (1994) that ``the lengthy and unpredictable duration of this
process can create serious difficulties for research.''
A closely related issue is that oceanographers and other marine
operators routinely use underwater sound for a wide variety of
important purposes. However, the MMPA does not provide guidance to
govern its application to instrumentation that is in widespread and on-
going use, nor does it include a mechanism for allowing for such on-
going uses other than through exemptions that must be applied for on a
case-by-case basis. I recommended last year either that the National
Marine Fisheries Service clarify its position on the use of a wide
variety of routinely used sound sources or that the act be modified to
provide for the issuance of general authorizations allowing for the use
of instrumentation that has the potential for taking by harassment in
situations in which the taking will be unintentional and will have a
negligible impact on the affected species and stocks. NMFS should be
tasked with issuing regulations providing general authorizations for
uses of sound that meet appropriate criteria. Such regulations could
include provisions excluding critical habitat from the general
authorization, if appropriate, for example.
H.R. 2693's proposed provision for a general authorization responds
to these concerns. I therefore strongly support the proposed change.
Scientific Research on Marine Mammals and Sound
While the MMPA changes discussed above are important, they are not
sufficient in and of themselves to address the issues now facing the
ocean science community with respect to marine mammals. In its reports,
the NRC makes it clear that the current understanding of the effects of
sound in the ocean on the behavior and health of marine mammal needs to
be improved. 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. It is clear that
increasing our scientific understanding would clarify and narrow the
need to obtain permits and authorizations under the MMPA, as well as
making it easier for researchers to include effective mitigation
measures in their experimental plans. A robust marine mammal research
program is absolutely essential to protecting marine mammals and
conducting other essential research in our oceans.
Funding and scientific leadership in this area to date has come
from the United States Navy. Over the years, the Navy has supported the
efforts of pioneers like Sam Ridgway and Ken Norris to expand the
boundaries of our knowledge about these unique animals. Today, the
Office of Naval Research maintains a substantial research program on
underwater sound and marine mammals.
I believe that an enhanced research program on the effects of
underwater sound on marine mammals is needed. It is important that this
program be independent and peer-reviewed. It should be broadly based,
with participation from funding agencies in addition to the Office of
Naval Research, including the National Science Foundation, the National
Oceanic and Atmospheric Administration (NOAA), and the Minerals
Management Service. Support from private industry and non-governmental
organizations for research managed in such a manner should be
encouraged. The National Oceanographic Partnership Program offers a
potential mechanism to bring these entities together in a process that
provides both needed coordination and scientific independence. As you
undertake the reauthorization process for the MMPA, you should consider
authorization of such a program.
Conclusion
Mr. Chairman and members of the Committee, I sincerely appreciate
your attention to this complex and emotional issue. Both marine mammals
and people use sound in the sea for a wide variety of important
purposes. I believe that the H.R. 2693 responds in a meaningful way to
the suggestions provided above. If enacted, it will facilitate the
constructive use of sound in the sea, focus regulatory efforts on
activities that have biologically significant impacts on marine
mammals, and make it easier to do the research needed to improve our
understanding of the impacts of underwater sound on marine life, while
continuing to protect marine mammals.
Thank you, and I look forward to your questions.
______
Mr. Gilchrest. Thank you, Dr. Worcester.
I yield first to--if he has any questions--to the Chairman
of the full Committee, Mr. Pombo.
Mr. Pombo. Well, thank you. I would like to get back to Dr.
Tyack, if I can. You talked about the problems and delays in
getting a research permit, and I would like you to expand on
that a little bit for me. Why would it take 18 months or 2
years to get a permit?
Dr. Tyack. Yes. I think that not all of these problems are
problems with the MMPA. They are problems with Endangered
Species consultations and with NEPA. One of the things that is
causing more delays than there were in the past is that court
case that I was involved with hinged on the question of whether
an amendment to my research permit to do something that had
already been permitted required a full environmental
assessment. And the judge ruled that, yes, each amendment
requires an environmental assessment to back it up.
Mr. Pombo. So any change in the research you are doing
would require you to go back and do another environmental
assessment?
Dr. Tyack. Or require NMFS to do the assessment. And they
simply don't have the staff. The Office for Protected Resources
that does permitting is not geared up to be able to do this.
These are very difficult time-consuming processes under NEPA.
And I strongly support the suggestion that Dr. Lent made of
trying to get ahead of this by doing programmatic environmental
assessments. But it is going to take a significant effort for
them to be able to do that and keep the research process going
on at the same time.
And I would also like to second Dr. Lent's points that
there are many research permits for non-endangered species that
are not involved in the important conservation issues that can
move very quickly. And there is a general authorization process
that seems to work quite well for these. The thing that is a
problem here is that research on endangered species, and
particularly those that are most involved in tough conservation
issues like right whales, are the ones that get the most
delayed. And they are the ones that I think Congress ought to
focus on trying to support the most. They are the most
essential for helping resolve the problems that have been
brought up here.
Mr. Pombo. What change do we have to make, either in the
Marine Mammal Protection Act or in the ESA or other laws--
because, I mean, we can blame them, but the truth is, we are
the ones that pass the laws. So, you know, whether we point
fingers or not, it is our responsibility.
What changes would you recommend in existing laws to try to
speed up that process or eliminate the red tape that exists, or
the bureaucratic delays that exist?
Dr. Tyack. I think that giving the resources to do the
programmatic assessments under NEPA is probably the most
important step. I personally feel that actually creating a
deadline would be very important. This was a recommendation of
the National Research Council, to actually create a deadline of
three to 4 months, something like that, for issuing the
permits. The required steps that they need to take can easily
fit into that time period. And if there were an actual deadline
that scientists could count on, that would be very helpful.
Right now, it is a completely open-ended process. So when we
apply for a permit, we always try to give it about 6 months,
but we can't know when we will actually receive our permit. And
very often it involves frantic phone calls by satellite phone
from a research vessel to D.C. to try to get the permit faxed
to the ship.
Mr. Pombo. But--I think we need to think this through a
little bit more, because it is not just a matter of them
carrying out the environmental assessments and having the
people. I think--my question is, is all of that absolutely
necessary to go through? If you are out and you have been
permitted to go out and do a research project, if there is a
minor change in that research, is it really necessary to do
another environmental assessment, or is this just a full
employment act to keep more people doing more things?
Dr. Tyack. This is why I was suggesting at the end of my
testimony about this triage process. I think if NMFS were able
to work with a clear de minimis kind of standard for harassment
and for takes under the MMPA, and publish a list of activities
that they do not estimate cause takes, then that could maybe
account for a lot of these kinds of issues. That doesn't occur
right now. I also think the general authorization process,
which has been included in H.R. 2693, if that were linked,
again, to some kind of up-front NEPA kind of analysis showing
that certain kinds of activities are expected in general to
have negligible impacts, would streamline it greatly. And if
the research permits were limited to other activities, I think
that may both reduce the burden on scientists and on the
permitting agencies. But there is a considerable amount of
analysis up front to be able to get to that point.
Mr. Pombo. And finally, if we were to look at it on the
broad sense and take research and the activities that you and
your colleagues have, but to look at all of the activities and
just come up with these broad definitions of activities that
would be permitted--because, you know, obviously we get
complaints from industry, we get complaints from the
researchers, everybody. Wouldn't it make sense just to come up
with these broad areas that are considered to have a negligible
impact and say that if it falls within these areas, it is OK
and you don't have to go through, you know, a multi-year
process in order to get a permit. Would that make sense to you?
Dr. Tyack. Absolutely. And that follows the recommendations
of NRC to try to have a uniform process applying the same
standards. Right now, I would say the reason there is so much
effort--I should be corrected by the Federal agencies if I am
wrong with the numbers--but I think that seven people are
involved in authorizing scientific research versus two people
for everything else. That clearly does not balance the amount
of impacts caused on these animals. And I think that having
some process that is streamlined for negligible impact and
applied uniformly to all activities would greatly help this
problem.
Mr. Pombo. Thank you. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pombo.
Mr. Pallone?
Mr. Pallone. Thank you, Mr. Chairman. I guess I am really
asking, well, either Dr. Tyack or Worcester or David Cottingham
these questions about the harassment definition. The proposed
change the to the definition of Level B harassment in H.R. 2693
would require that an activity cause a biologically significant
disruption of activities including, not limited to, migration,
breeding, care of young, predator avoidance, defense, or
feeding. In contrast, the definition proposed earlier by the
NRC would require that an activity cause a disruption to
biologically significant activities.
Now, I know it might not seem like they are not that
different, but I just wanted to ask if this inversion of the
words is important and is something that we should be concerned
about.
Dr. Tyack. I would be happy to start on this. I think that
the critical issue, if this hadn't been copy-edited carefully,
would be something like biologically significant disruption of
biologically significant activities.
Mr. Pallone. OK.
Dr. Tyack. But since there is a--because the point to be
emphasized is that you want to have a standard that focuses on
something that could affect growth, reproduction, survival of
the animals. That should be the standard. And I think since
there is a list of the activities, and they are obviously
selected to be biologically significant, as opposed to random,
I think that if there is only going to be one use of the
modifier, it is probably more important to be in front of
``disruption'' than in front of the activities. So I actually
support the way H.R. 2693 does this. And I don't think that
that is a particularly problematic change of the exact text in
the NRC language.
Mr. Pallone. Does anybody else want to comment on the same
issue?
Mr. Cottingham. Let me just add a little bit to that. The
other part of it is what is in your list. Surfacing was in the
administration's bill. I don't think surfacing is in--I mean,
these are really very minor points. The terms and the other
things that are listed--
Mr. Gilchrest. If the gentleman will yield just for a
second?
Mr. Cottingham. Yes, sir.
Mr. Gilchrest. Instead of ``surfacing,'' we use the word
``breathing.''
Mr. Cottingham. OK. Sorry. ``Breeding'' or ``breathing''?
Mr. Pallone. ``Breathing''.
Mr. Gilchrest. ``Breathing''?
Mr. Cottingham. I don't think that is in there, sir, but I
stand to be corrected.
Mr. Pallone. ``Breeding.''
Mr. Cottingham. ``Breeding'' is there, but I don't believe
``breathing'' is. But I--
Mr. Gilchrest. You are right.
Mr. Cottingham. These are the kind of very detailed
comments that we want to have the chance to work with the
Committee on.
Mr. Pallone. But you don't feel there is a difference
between the inversion of the words, though?
Mr. Cottingham. I really think that is almost
insignificant.
Mr. Pallone. OK. All right, what about the--
Mr. Gilchrest. Will the gentleman yield--and I will yield
you a little bit more time. Just on this point,
``disruption''--we looked at this yesterday. And ``significant
biological disruption,'' we had some understanding, was not as
protective as--this is ``significant biological disruption''
versus ``disruption of biologically significant activities.''
``Disruption of biologically significant activities,'' as I
understood it, was more oriented toward the cautionary
approach, based on the emphasis, as opposed to ``significant
biological disruption.'' And, you know, I am beginning this
word-smithing, but we might as well word-smith now as opposed
to, you know, two, 3 years from now.
Mr. Cottingham. I actually think you are right, sir, in
terms of the disruption of those key biological activities, of
which I think surfacing and breathing would be one.
Mr. Pallone. I hope I don't regret having asked this
question.
Mr. Gilchrest. I will yield you some of my time.
Mr. Pallone. No, that is all right. If anyone else wants to
answer it, I --yes, go ahead.
Dr. Worcester. Yes, if I might comment on that. Not
speaking as a lawyer, but to talk about the meaningful
disruption of biological important activities, ``meaningful''
seems to be a slightly ambiguous standard; whereas if the goal
is to make sure we focus on biologically significant
activities, I would agree with Dr. Tyack that it is better to
have it modify the term ``disruption.'' I mean, really, the
goal here is to get away from worrying about merely detectable
changes and to focus on biologically significant ones.
Mr. Pallone. OK.
Dr. Tyack. If I could comment just briefly on why this has
come up after 30 years of the act. I think in the early years
of the act, our techniques for following behavior were so weak
that the assumption was if we could detect any change in
behavior, it probably was important. And now we have developed
very sensitive methods to detect does an animal slow its fluke
beat, does it turn its head when it hears something. Those
quantify as changes, detectable changes in behavior, and in
many cases they can be significantly--statistically
significantly predictable in terms of response to a particular
sound.
But it seems like that is not the intent of Congress to
regulate, an animal turning its head when it detects a signal.
And, at least the suggestion of the NRC panels was that the
criterion to use was ``could it'' potentially affect these
biologically significant activities? Was it a disruption of
feeding that would actually slow the process for the animal
getting energy. Was it a disruption of mating behavior that
might affect reproduction in the population. And that seemed to
be the criterion to use, rather than ``detectable,'' which the
Marine Mammal Commission, in the early 1990's, suggested had
been the standard up to that point.
Mr. Abercrombie. Would the gentleman yield?
Mr. Pallone. Oh, sure.
Mr. Abercrombie. I just want to make sure. Who is speaking?
Dr. Tyack. My name is Peter Tyack.
Mr. Abercrombie. I am sorry. I thought it was you, but I
couldn't see. I just want to make absolutely sure, then. So you
are saying that--and I think this is important for what the
Chairman was moving toward, too, that if we change from
``detectable'' and make the changes that are suggested, this is
as a result of experience over the past 30 years, which allows
us to have not necessarily a more sophisticated definition, but
a definition which gets at what we are really aiming for. After
all, this is the Marine Mammal Protection Act. And you think
this will accomplish what both Mr. Pallone and Mr. Pombo are
inquiring of you with regard to the legislation itself?
Dr. Tyack. Yes. I think it is very important to remain
precautionary, but I think the standard should move beyond
``detectable changes of behavior.''
Mr. Abercrombie. Which is what we are trying to legislate,
so that we can put this right.
Dr. Tyack. Exactly.
Mr. Abercrombie. Thank you.
Mr. Pallone. Mr. Chairman, I just want to ask one more
question about this harassment definition, then I will move
on--or you can move on.
The definition for Level A, ``potential to injure''
harassment proposed in H.R. 2693, requires that an activity
have the probability to injure a marine mammal. And I was
wondering if it seems that this change would require a higher
burden of proof for a given activity's likelihood of causing
harm. In other words, does the word ``probability''--you know,
what is the distinction from ``potential''? Does the word
``probability'' have a clear and commonly understood legal
definition? Do you think this change would make the definition
less protective of marine mammals? Or do you even understand
what I am talking about? [Laughter.]
Dr. Tyack. Well, as a scientist I prefer to use numbers for
quantitative issues like this, but clearly there seems to be a
spread between ``potential,'' which can and has at times been
interpreted to be the most sensitive animal within a large
population, which is very protective, but may be very difficult
to determine empirically. And ``probable,'' which to me seems
like it is more than 50 percent, which almost certainly is not
protective enough.
So I would assume that there ought to be a middle ground in
there, which is a bit of a judgment call, but it seems to me
that these are bound to extremes of probability that I wouldn't
want to use here. I think something like ``beyond a remote
possibility'' seems reasonable; ``more than half of the animals
being disrupted'' seems not precautionary enough. But just
``potential'' by itself has in the past occasionally been
interpreted as an exceedingly low level of potential for risk,
one that is almost impossible to measure.
Mr. Pallone. Could I ask Dr. Lent to respond to it?
Dr. Lent. Yes. Thank you. As I mentioned in my testimony,
we do have concern that the term ``probability'' might have
some people thinking it would have to be at least 50-50 or more
than 50 percent. So, again, we welcome an opportunity to
discuss this language. This is where all of our English classes
indeed do come in handy.
Mr. Pallone. OK. Thank you. Thank you, Mr. Chairman.
Mr. Abercrombie. Do you think Portuguese would help?
[Laughter.]
Mr. Gilchrest. There you go.
How about ``the potential probability''? [Laughter.]
I yield to the gentleman--did you need any more time,
Frank?
Mr. Pallone. No.
Mr. Gilchrest. Yield to the gentleman from Hawaii.
Mr. Abercrombie. No more. Thank you.
Mr. Gilchrest. No questions?
So, Dr. Lent, the--and, you know, we are eager to absorb
the kind of information to create a situation where we have
fundamentally sound--at this point, because it will change in
20 years, but at this point we have fundamental sound science
recommendations from the broad community to make it
``significantly potential'' or ``potential'' or ``probable'' or
``potentially probable'' or whatever it is. So we want to
continue to work on those issues. But we are getting some type
of a consensus here.
Mr. Abercrombie. Would you yield, Mr. Chairman, on that?
Mr. Gilchrest. Just let me finish that sentence and I will
yield. We are getting to a point, I think now, that we are
looking at a consensus out there in the broader community that
the word ``probable'' may not be the word we want to use
because it isn't protective enough. We had some sense that
``significant potential'' was not protective enough. And we
might just go back to not changing the Level A definition. I am
not sure yet, but that is what we are trying to work our way
through.
The gentleman from Hawaii.
Mr. Abercrombie. Yes, thank you. The reason I didn't ask a
question was, as I probably should have mentioned--what I think
needs to be done--and this testimony verifies if for me, and I
will just it out there for your consideration--I think we
should, the word that needs to come is ``likely.''
Mr. Gilchrest. We will test that out.
Mr. Abercrombie. And I am deadly serious about that.
Because I have been thinking on this for a long time,
particularly in the context of the Navy experiments with sound
and all this other. And I think ``likely'' is the thing that
handles the word--it handles ``probability,'' it handles
``potential.'' And I think we have reached a level of
sophistication with respect to scientific research in which
there is--and I think of it in terms of accident. I am not
thinking about it in terms of cold-hearted people who are out
there saying, you know, we're just going to go ahead and do
this and to hell with the animals, or the mammals.
What I mean by ``likely,'' is if you--I will draw a rough
parallel, not necessarily an analogy, that if you are driving
an automobile at a certain speed and under certain conditions
and so on, it is--you can use the would with some degree of
certainty that it is likely an accident will occur, likely that
you will go into a spin with your car on the ice, likely--
So if it is likely or unlikely, I think that that is not
something that is vague. I think it is something that is
achievable scientifically in terms of determination, and I
think it stands up in terms of legal definitions that we need
in order to make a solid legislative judgment. And I think it
can get beyond the propaganda and the accusations and the
emotions that can color this kind of consideration
legislatively.
Mr. Gilchrest. I thank the gentleman. I am not sure that we
will ever get free of emotions and propaganda.
Mr. Abercrombie. That is the reason I think we should--
legislatively, I think we should think in terms of the word
``likely'' and ask our scientific friends--our friends who have
a scientific background as well as some experience in terms of
administration of the law to think as to whether or not that
might be legislatively useful to us.
Mr. Gilchrest. We will pursue that line of thinking. Thank
you very much. I think the--part of what we are trying to do is
what Dr. Tyack and Dr. Worcester made reference to, and that is
if the gray whale or other marine mammal moves as a result of a
ship passing, let's say a Navy ship, we want to get away from
the idea that that is a process that needs a permit, or that is
harassment, when that might be normal behavior as the result of
a whole range of noise in the ocean, not just because that
particular ship used that particular sonar in that particular
place; but to the fact that there will be some behavior change
that will be damaging to that group of marine mammals. And that
is the fine-tuning that I think we are trying to proceed with
here.
And I think we will definitely work on trying to put into
the language of this reauthorization the recommendations that
you are making here today, including the ones from Fish and
Wildlife. We will also try to make, as we work through this
process and with you, a regulatory regime that is befitting a
Nation like ours that can focus attention on highly
sophisticated science that will, in the long term, benefit our
relationship with marine mammals in the oceans.
I do want to just focus for a minute on a couple of other
words dealing with this issue of harassment. The administration
has used the word ``abandoned,'' as opposed to some of the
other terms that we have been kicking around here--``disruption
of biologically significant activities.'' and I would like the
administration--well, maybe Mr. Cottingham and Dr. Lent to
explain the difference between the word ``abandoned'' as
opposed to ``disruption of biologically significant
activities,'' if I could put those two in alignment. And then
maybe the other members of the panel, Dr. Tyack, Dr. Worcester,
and maybe Mr. Jones.
Mr. Cottingham. Thank you, Mr. Chairman. My--when the
administration was pursuing this tack, they developed this
language, or we developed this language with the idea that it
wasn't just a temporary change. And it was very much like you
were just bringing up--if a ship goes by and there is a slight
movement or something. So we went with the approach that the
change in that behavioral pattern would have to be significant.
It would have to be more than just a temporary change.
Mr. Gilchrest. ``Abandon'' is complete.
Mr. Cottingham. Well, yes, sir. And we have discussed is it
abandoned right here, is it abandoned--if the animals move a
mile and start taking up that activity again, is that
considered ``abandoned''? These are things that we have
recently been--you know, is it--there's both a spatial and a
temporal part of abandonment. Is it a 15-minute, is it an hour,
is it a 1-mile, is it a 5-mile? We have actually been in
discussions like this with our colleagues at National Marine
Fisheries Service in the Navy and other agencies to talk about
both the spatial and temporal types of abandonment.
Mr. Gilchrest. Dr. Lent?
Dr. Lent. Thank you. I might just add that in our
definition, we also say--the complete phrase is ``to a point
where such behavioral patterns are abandoned or significantly
altered.'' So it doesn't have to be completely abandoned to
meet that level.
Mr. Gilchrest. Is there a reason you-- All right, I am not
going to kick a dead whale here. [Laughter.] But we do have
some concern even if it is abandoned or--
Dr. Lent. Or significant.
Mr. Gilchrest. --or significant. We are trying to work
through the word ``abandoned.'' And we know what the
administration is trying to get at, which is what we are trying
to get at with ``disruption of biologically significant
activities,'' so the small turn of the head is not considered
harassment.
Mr. Cottingham. Mr. Chairman, if I may--
Mr. Gilchrest. Yes, sir.
Mr. Cottingham. One other thought just came in. There may
be instances where a single instance of a ship going past would
have a momentary disruption, and that would not be considered,
under our definition or yours, a biologically significant
activity. But numerous, cumulative, repeated, you know, every
day, every hour, every 15 minutes types of activities, we want
to make sure that whatever definition we come up with has the
potential for assessing the cumulative impacts of that,
repeated instances of harassment as well. So I think that is
just one more point that could get to the ``abandoned'' or
``significantly altered.'' Because there are a lot of times
when one vessel or one activity wouldn't do something, but if
they did it every day, it might.
Mr. Gilchrest. So you are saying that the word
``abandoned,'' in a broader sense from your perspective, would
be more protective of marine mammals because it focuses in or
you can collect data which determines the cumulative impact of
that activity on marine mammals?
Mr. Cottingham. No, I didn't mean it particularly like that
as much as this is all in the context of authorizations or
getting permits. And there may be activities that you could do,
whether it is a research permit or an incidental activity, that
one researcher going in and collecting samples or doing fly
overs might not create a big problem. But the problem could
come if you had 50 researchers who wanted to go on that one
beach and collect samples from a seal. And there are only so
many seals, and so they could go in and drive the seals into
the water when they landed and went on-shore.
If it only happened once during a summer, it probably
wouldn't have any effect at all, and the researcher would be
permitted for that. But if they, over the course of a summer,
researchers or others went ashore to collect samples, pretty
those seals or sea lions may not haul out on that particular
breeding beach. And that would be an abandonment of that beach.
Mr. Gilchrest. We will have to work through that.
Mr. Cottingham. OK. I hope I didn't add confusion.
Mr. Gilchrest. I hope that word ``abandoned,'' then,
doesn't make it more difficult for researchers to pursue their
studies. We will work with you on that word ``abandoned.''
I want to ask a final question to whoever wants to answer
this, I guess. If you look at the ocean as a whole and you look
at the noise in the ocean as a whole, let's say prior to human
activities, before there ships, what was the noise in the
ocean, the natural noise in the ocean? And can you compare the
natural noise in the ocean to human noise in the ocean--that is
commercial shipping, recreational boating, seismic activities
from marine exploration, to the Navy? And if you were to rank
that as to what is all this noise--and I guess natural noise--I
don't know what natural noise is, wave action, volcanoes,
lightning strikes, you know, those kinds of things, natural
noise; and what is--we are looking at--I don't want to say we
are looking at nature harassing marine mammals, or orcas
harassing marine mammals, or whatever, but we have--you know,
the noise in the ocean: Where does most of the noise come from,
given the fact that marine mammals have evolved with that
natural noise or there is some resiliency to it? But natural
noise in the ocean, what is the next noisiest thing in the
ocean? Do you have that information?
Dr. Worcester. That is a rather complicated question. The
most recent NRC report was, in fact, in large measure devoted
to just that issue. There are few simple comments one can make.
At low frequencies, below a few hundred Hertz, probably the
best measure we have is by comparing the background ambient
noise levels in the Northern Hemisphere to those in the
Southern Hemisphere. And those in the Northern Hemisphere are
about 20 dB higher--there is about 100 times more power in the
Northern Hemisphere, predominantly due to shipping. So sort of
the general background noise in the ocean has increased
substantially because of mankind's activities.
At higher frequencies, up around a few kilohertz, wind and
wave action is typically the dominant source of noise. Rain
falling on the ocean makes substantial noise, raising the
level, really, above background wind-and-wave noise. So--
Mr. Gilchrest. I am just going to interrupt real quick. I
will end, because maybe Mr. Chairman and Mr. Pallone have other
questions to follow up.
I guess what I am looking for is, in a lot of the testimony
that we read, a lot of the noise, especially human activity
noise, has an effect on the marine mammals' ability to use
their acoustics; it interferes, all of this--whether it is
shipping or seismic or sonar or whatever, it interferes with
that. So I guess maybe this would be something Mr. Cottingham
is going to pursue as far as anthropogenic sound and what the
marine mammals can tolerate.
So if it is raining, you have big storm out there, that is
high frequency, versus heavy shipping lanes, which is low
frequency--does that have an impact on marine mammals in
general? Does it determine, the marine mammal as far as the
frequency is concerned, what could be biologically disruptive?
Those kinds of things. Do we have those--is that scientifically
discernable now, or is that something that we are not sure of?
Mr. Cottingham. Mr. Chairman, there are--and Dr. Tyack has
been on several of these National Research Council panels that
he mentioned looking into this. And that is exactly the sorts
of things we will be working with, a group, to not only talk
about the background sources of noise as--both the chronic and
the acute sounds, because what Dr. Worcester was talking about
is really a lot of the background noise that is there. Some of
the most recent problems or incidences of problems have come
from the much more acute that are--they only last a short--you
know, an hour or a day or a few minutes, as with the sonar-type
activities. We will be looking at that in talking about
research activities and ways to mitigate those potential acute
sounds as well.
Mr. Gilchrest. Thank you very much.
Mr. Pombo?
Mr. Pombo. Thank you, Mr. Chairman. I have a lot of
questions that I would like to ask, but I think this is
something that over the course of time we need to kind of work
through a lot of what we mean in terms of definition, so that
we all understand exactly where we are going.
But there is one question that somewhat perplexes me, and
that is--under the general idea of the Marine Mammal Protection
Act, we give a higher level of protection to marine mammals.
Should there be a different interpretation or a different level
of protection when we are talking about a population that may
be overpopulated in a certain area versus one that is
endangered or more threatened in terms of an overall
population? Should there be a different level of protection or
a different level of what we mean by ``harassment'' or what we
mean by all of these protections that we have put in in this
law?
In California we have areas where we have overpopulation of
certain marine mammals, and there is increasing conflict with
human activity because of that. And I am just not sure if we
should have that difference in there or not.
Dr. Lent?
Dr. Lent. Thank you, Mr. Chairman. Increasing populations
of marine mammals is a happy problem, but it is a problem that
we are very much aware of, particularly from our recreational
constituents on the West Coast. I think it is important to note
that when we make a determination of negligible impact, we
certainly take into account the number of animals in the
population--is it going to have an impact or not? It is very
different for Hawaiian monk seals than it would be for
pinnipeds off the coast of California.
So whether or not we need to have different definitions of
harassment determining the level of population or depending on
the level of population, I don't know if that is necessary
given the process we go through to say is it or is it not
having a significant biological impact on the animal.
I just want to note that we are very aware and working very
closely with our constituents in the recreational community, in
particular on the West Coast, dealing with ways to handle this
happy problem of too many animals out there. When we have a
limited number of staff and budget, we have to focus on getting
those populations that are in bad shape back up, and hopefully
we will have enough funding eventually to focus on dealing with
too many animals in certain closed areas. Thank you.
Mr. Pombo. I agree with you that your focus should be on
the threatened or more problematic species. There is no
question that that is where your focus should be.
Somebody recently handed me a news article about--I believe
it was in La Jolla, in Southern California, where some guys
went on to the beach and chased--I don't know if it was sea
lions or seals or what it was they chased off the beach, and
they were all arrested and fined $1,000 for doing it. I have a
hard time putting together your description of not having
enough money and personnel to take care of things. If that is a
priority and you can dispatch people to take care of somebody
doing something like that, I don't--I think maybe you have too
many people, if that is what you are doing.
Do you follow what I am saying?
Dr. Lent. Thank you, Mr. Chairman. I understand the case of
the children's pool in La Jolla. The folks that were issuing
the citations were from the enforcement side of the Agency.
They were not the scientists who were out working with the
populations that are in trouble. We try very hard to use
outreach and education and having docents there on the beach to
inform people that this is not something that we want to have
happen, rather than to have to issue citations. One of the
persons that had a citation was in fact injured by the mammals,
so it is not just for the mammals' protection, but also the
folks using the beach. Thank you.
Mr. Pombo. Well, I am going to yield back, Mr. Chairman,
but I really do think that we need to pursue this a little bit
in terms of the differences in areas that may be overpopulated
versus areas that aren't, and look at what we mean in terms of
harassment of those species. I think that is a big part of the
conflict that we are having, at least on the West Coast, where,
you know, people--my average constituent goes down there and
there are seals all over the beach and they are not supposed to
use the beach because the seals are there. And it is a conflict
that I think is unnecessary and causes us problems.
You know, when we talk about some of these highly valuable
research projects that are going on and our desire to further
that research and to protect those marine mammals, I think my
constituents and others look at that very differently than they
do a beach that is full of seals. And I think there should be
some rationale in that whole thing.
Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pombo.
Mr. Pallone, any more questions?
Mr. Pallone. Thank you, Mr. Chairman. I just wanted to ask
a couple of questions about the captive animal welfare, either
for Rebecca Lent or David Cottingham. In 1994, the changes to
the Marine Mammal Protection Act gave APHIS the authority for
captive marine mammal welfare inspections. And I wondered if
APHIS has demonstrated the requisite expertise and ability to--
oversee marine mammals in captivity. And in addition, you know,
how many inspectors do they deploy to inspect display
facilities? Have they promulgated specific care standards? Any
oversight or reports requirements for APHIS? I am just kind of
lumping these all together. If either of you would like to
respond.
Mr. Cottingham. Thank you, Mr. Pallone. I don't have the
specific numbers on how many APHIS inspectors there are. Of
course, this--I believe that APHIS started a negotiated
rulemaking process and they got part of the way through it and
in 1998 or 1999, they came up with some of the proposals to
implement those. But I think some of the most contentious
aspects were not finally finished.
Of course, the Commission was on record urging APHIS
throughout some incidences recently with some polar bears, that
the situation was such that the APHIS folks were saying that
the person who was inspecting those facilities had no real
training in polar bears, they didn't get there very often. And
it really was quite contentious. It has been resolved, and most
of the polar bears are now in good--
Mr. Pallone. Well, let me--maybe what I can do, the more
specific questions are about the inspectors and the other
things. Maybe I can ask you those in writing.
Mr. Cottingham. Right.
Mr. Pallone. But if either of you could just tell in
general your opinion about whether you think APHIS has
demonstrated requisite expertise and ability to do the
inspection and to oversee the captive marine mammals. I can ask
those other questions more specific in writing, with your
permission. But just in general, if you could comment on
APHIS's ability in that regard, either you or Rebecca Lent.
Mr. Cottingham. My comment would be that the Commission has
urged on a number of occasions that APHIS take some more
training with marine mammals, and with vets who were
specifically trained in marine mammalogy and dealing with
animals that are in either public display or research
institutions.
Mr. Pallone. OK. Dr. Lent?
Dr. Lent. Thank you. I don't have anything to add. Thank
you.
Mr. Pallone. OK, we will just add those--if we could ask
those other questions in writing.
But let me just ask about the polar bears. As you know, the
traveling exhibit of marine mammals, a number of them gained
national attention with the Suarez polar bears incident last
year. I guess one of the polar bears died, in fact. And is
there a need to include not just--now, cetaceans are what?
Those are the whales? Dolphins and whales. Boy, you are getting
me technical here. Is there a need to include not just
cetaceans but all marine mammals in a prohibition on
transportation for traveling exhibits? And specifically in
regard to those Suarez bears, what is their current legal
status? And you know, I think you were hinting about them being
located to appropriate institutions. Do you want to comment on
what happened in that regard?
I guess that is Mr. Jones, because you did a very good job
in trying to take care of the bears. So I am asking you that
question.
Mr. Jones. All right, thank you, Mr. Pallone. Let me start
with the specific situation with the Suarez bears first, if I
could, and then answer the first part of your question.
As you noted, we first became aware of issues regarding the
conditions under which the bears were being kept in 2002--or
late 2001. But we had had even before that a question about the
documentation. We initially issued a permit for all these bears
to come in based on our believe that everything was right with
their paperwork. But in March of 2002, we decided that one of
the bears, in fact, was not the bear that was identified on the
documentation we were provided. So we seized that bear. That
bear is now in the Baltimore Zoo and doing well.
Mr. Pallone. --go see him.
Mr. Jones. In November of 2002, we decided that we would
seize the remaining six bears because of the fact that the
bears had come into Puerto Rico, into the United States, under
the conditions that they would be maintained for public
display. And the circus was no longer displaying them. There
certainly were questions about the conditions under which the
bears were kept. Those issues were the responsibility, first,
of APHIS but also of the Commonwealth of Puerto Rico. We felt
finally that regardless of the other issues, the bears simply
were not being used in the way that the permit required, and
that there were in addition these other issues about care of
the bears, and we certainly felt a responsibility.
So we seized those bears. Unfortunately, one of the bears
died during the transport. The remaining bears, one is at the
Point Defiance Zoo in Tacoma, Washington; two are--sorry, two
are at Point Defiance, two are at the North Carolina Zoo in
Asheboro, North Carolina, and one went to the Detroit Zoo.
Now, the--we have litigation ongoing on this issue. The
Suarez Circus has sued the Government and we have actions
taking place, and I am not able to comment on the details of
the matters that are pending in court. But I will say that we
believe that the actions that we took were completely
appropriate in this case.
Now to your first question.
Mr. Pallone. About the prohibition on transport.
Mr. Jones. It is clear that there is a different level of
risk to whales, dolphins, porpoises, those species that we are
not responsible for in the Fish and Wildlife Service that have
to be maintained in water all the time. And so that is the
reason that the administration bill focused on these other
species. The administration does not have a position regarding
the inclusion of additional species. I will just say
personally, Mr. Pallone, that I would not object to a
broadening of that prohibition in the law. But for an
administration position, we would probably have to provide you
with that.
Mr. Pallone. All right, thank you very much and thank you
for all your help in helping the bears. Appreciate it.
Mr. Jones. And Mr. Pallone and Mr. Chairman, if I could add
one other thing, because I was remiss in my opening statement
not to note something else. I am accompanied here by Judy
Wilson from the Minerals Management Service, who is the
endangered species coordinator for MMS. And while most of the
issues we have discussed this morning regarding oceanic species
are within the purview of the Fish and Wildlife Service, the
fact is that MMS is involved through its seismic activities and
through its regulation of oil and gas development offshore. And
MMS takes these responsibilities very seriously.
And while it may not be the place here during this hearing
today, we are--the Department of Interior would certainly be
pleased to provide any information to you and your staff that
you would like to have about MMS and its activities and its
interactions with marine mammals. MMS does have an active
research program, and we work closely with them where we can
help to accomplish those things. And we would be pleased to
provide you with any information you would like to have.
Mr. Gilchrest. Thank you very much.
Mr. Pallone. Thank you.
Mr. Gilchrest. Thank you, Mr. Pallone.
Just a final brief question for this panel. I know it is
getting late. Everybody wants lunch and we have another panel
to go through and we have to be out of here by 1 o'clock.
But anyway, Dr. Lent. ``Little 3(i),'' that is what I am
calling it. Sounds like an Indian name. The paragraph in Level
B harassment that starts ``is directed toward a specific
individual'' is still making a number of constituencies a
little bit uneasy. We understand why the Agency wants this
language to prosecute those non-permitted activities that
harass marine mammals. We include the language in our bill to
address the concerns of the Agency. However, we are questioning
the need for that paragraph now, since the phrase ``pursuit,
torment, and annoyance'' has been deleted from the definition.
Can't the Agency prosecute those non-permitted activities
without this added paragraph?
If you need time to ponder that.
Dr. Lent. Yes, I am waiting for that little song to go that
gives me time to think, right?
Mr. Gilchrest. OK, Frank and I could sing some Irish songs.
[Laughter.]
Dr. Lent. That would be good.
Mr. Gilchrest. Frank, you are Irish, aren't you?
Dr. Lent. Thank you, Mr. Chairman. I think the important
thing is we really feel that it is important to have something
in this bill that allows us to go straight to the activities
that are directed on marine mammals. It is clear, it is
something that is in there, in the law, so that we can get
regulations in place to address things like jet skis and swim-
with programs, things that clearly for us are going to alter
the behavior.
So we still think it is necessary. Again, as we mentioned,
we look forward to talking to you about that definition and
making sure that is the best way to go.
Mr. Gilchrest. Thank you. And we will pursue that.
We are going to have votes around 12:00, five votes. They
will take a lot of time out of here.
So, I enjoyed this panel. Hope we can get together again.
But thank you very much for your testimony.
The second panel today-- Dr. Lent, that might not be a bad
idea. I know which song you are thinking of. We will bring that
in here the next time. ``Jeopardy,'' yes--is that ``Jeopardy''?
I will have a little tape recording.
Our second panel will be Mr. Robert Hayes, General Counsel,
Coastal Conservation Association; Ms. Karen Steuer, Senior
Policy Advisor, National Environmental Trust; Mr. Charlie
Johnson, Executive Director, Alaska Nanuuq Commission--welcome;
Dr. Randall Wells, Conservation Biologist, Sarasota Dolphin
Research Program, Mote Marine Lab; Mr. Robert Zuanich, Board
Member, United Fishermen of Alaska.
I want to welcome all of you. If there are no seats in the
back, for the people that are standing, since I don't think we
will have any more members, you can sit in the lower dais if
you so choose. Make it a little bit more comfortable.
We will start with Mr. Hayes. Folks, thank you for your
attendance here this morning. We look forward to your
testimony. Mr. Hayes.
STATEMENT OF ROBERT HAYES, GENERAL COUNSEL, COASTAL
CONSERVATION ASSOCIATION
Mr. Hayes. Well, I would like to begin by thanking you for
pulling together a bill that, from our view--that would be the
recreational fishermen's view--begins to address potential
interactions between recreational fishermen and marine mammals,
but does it in a way that might actually apply a little bit of
common sense.
I would like to say that I am here today on behalf of the
Coastal Conservation Association. But in addition to my remarks
today on behalf of them, I should point out that I have
discussed this testimony with the Recreational Fishing Alliance
and with the American Sport Fishing Association, and they share
similar views for this testimony.
You know, Congress in 1972 decided that marine mammals were
going to take a special position in this world. And
recreational fishermen certainly support that point of view.
Recreational fishing, however, has over the last few years, 30
years, grown to a substantial size industry in volume. The
National Marine Fisheries Service presently estimates that
there are 12 to 17 million marine recreational anglers in the
United States. We think, actually, that number is a little bit
low. So that is a substantial involvement in the marine
environment.
When we first got involved with this concept of how we
interacted with marine mammals, frankly it was not through
anecdotal evidence that there was actually an involvement; it
was through a reading of the administration's bill, which
referred to us, I think, as non-commercial fishermen. We didn't
know what that was, exactly, but we assumed it was us. I am
sure there may be others at the table that it referred to in
addition, but we assume it referred to us.
And so we appreciate the approach that you have taken in
your bill. Your bill basically directs this incidental take
activity to, really, what the problem is. And the problem, it
seems to me, is relatively simple. It is not commercial
fishermen or recreational fishermen that are the problem; it is
the gear that they use. If you look at the activity of fishing,
which is essentially what you have done in Section 118, and you
look at the kinds of activities that the normal, average
recreational fisherman is involved in, he has very little
interaction with the marine mammal. He is out there with a rod
and a reel, he has control of it, he has the ability to see
what he is doing. He knows what that interaction is. So an
incidental interaction is, frankly, going to be--not
``remote,'' but it certainly is infrequent, and it certainly is
never intentional.
However, there are--I actually have a report of these
things--there are reports of recreational fishermen using
commercial gear. And there is commercial gear which clearly has
an interaction with marine mammals. Gill nets is my favorite. I
found a report from the State of North Carolina--I am sorry Mr.
Jones isn't here--but there is a report from the State of North
Carolina that there are over 100,000 trips by recreational
fishermen in 2001 with recreational gill nets. Now, I didn't
know what a recreational gill net was. I knew what a gill net
was, but I had a little trouble figuring out what a
recreational gill net was.
But the reason I bring that up is that that apparently is
the impetus, or the largest impetus, for the administration's
view that non-commercial fishermen ought to be involved in the
Marine Mammal Protection Act.
I can point out this--and that is why I like your version
of the bill: Your bill looks at the problem. The problem is the
gear that interacts with marine mammals and the significant
impact, if there is a significant impact, on those marine
mammals. If it is the gear that interacts, it is the gear we
ought to focus on. It is not the activity of recreational
fishing. It is the activity of using a destructive gear.
And I will point out one other thing, which I found
remarkable in this North Carolina study. There are 190 trips in
2001 that are still being used by electric shock by
recreational fishermen. Now, I thought that was banned
everywhere, but apparently not in the State of North Carolina.
And for those folks who are sitting here going what in the
world is he talking about, it is an old way to catch catfish,
frankly, is the way they used to do it. You stick an electric
line down in the water, and over here you have an old crank
telephone, and you crank the telephone around and it kills lots
of fish.
Lord knows, when I was listening to this sound discussion,
I was thinking, boy, wait till they hear about this.
But that kind of gear. That kind of gear is clearly
destructive. It is the thing that we ought to be focusing on.
But at the same time, I don't think we ought to be engaging,
frankly, the largest sector of the recreational community and
the vast of majority of it that uses rod and reel. And so what
we would like to work with you on your bill, is we would like
to work on a provision that essentially makes clear that rod
and reel activity by recreational fishermen is a activity that
is not going to have very many interactions and is not going to
get involved, in the normal course of events, with a very
cumbersome Section 118 process--which I can actually assure
you, no recreational fisherman I know is going to be able to
muster the kind of attention that it is going to take to go
through that process.
So that is what we would like to work with you on.
[The prepared statement of Mr. Hayes follows:]
Statement of Robert G. Hayes, General Counsel,
Coastal Conservation Association
Good morning Mister Chairman:
My name is Bob Hayes and I am the general counsel for the Coastal
Conservation Association (``CCA''). We appreciate being asked to
testify about the amendments to section 118 of the Marine Mammal
Protection Act (``MMPA''), which as enacted in 1994 focused entirely on
commercial fisheries.
The Coastal Conservation Association is the leading marine
recreational fishing group in the United States. Formed by a small
group of sport fishermen in Houston in 1978, CCA has grown to a
fifteen-state operation with over 90,000 members. Each of our states
operates somewhat independently focusing on issues in the state that
are important to marine recreational fishermen. However, like so much
in oceans management, conservation issues encompass a regional and
national perspective, therefore, CCA learned long ago that federal and
international fisheries management were just as important to the local
marine recreational fishermen as the conservation of the most local
fish population.
CCA pursues conservation policies set by our state and national
Boards of Directors. These boards are made up of active volunteers
concerned about the health of the nation's marine fisheries. CCA has
been active in a number of conservation issues in the last twenty
years, which include: all of the east and gulf coast net bans; gamefish
status for redfish, speckled trout, tarpon, striped bass, river shad,
marlins, spearfish and sailfish; and, the reduction of bycatch through
the use of closed areas and technology. We have also pushed for the
improvement of the management system through the restructuring of state
and federal management systems; the elimination of conflicts of
interests by decision-makers, and the active involvement of our
membership in the management process.
The interaction of recreational fishermen and marine mammals has
not been a CCA priority until recently. In the last three years we have
been involved in the management of Manatees in the Florida. There the
interaction of boaters and manatees have resulted in a series of
regulations issued by the federal government and the State of Florida.
The most prevailing regulatory concept has been the imposition of slow
speed zones. The timing and location of the areas is a good example of
the violation of a management principle CCA has long endorsed.
Management of fisheries and fishermen is best done at the lowest
possible level of government. Local officials are more responsive to
the needs of the public and far informed about what works for the
impacted resources than officials in the federal government. Despite
years of interaction with federal fishery managers, I am still
astonished by the federal decision makers general lack of practical
answers to easy questions.
I know that the subject of this hearing and my testimony today is
not manatees but I would ask the Committee to consider the possibility
of amending the Act to instill the principle we are endorsing. Where a
State can manage a resource consistent with all the responsibilities of
the MMPA then it ought to be allowed to do so, without third party
recourse to the federal government. Such a delegation would provide
greater confidence in the regulations controlling the problem and at
the same time insure the same level of protection required by the Act
itself.
Congress and the American public made a policy decision in 1972 to
protect marine mammals in a way that no other non endangered species
received protection. As a result of this decision, marine mammals have
prospered and in some cases have filled ecological niches that have
resulted in increased interaction with man. Much of that interaction
has focused previously on commercial fishing which, because of the size
and location of its operations, has received the most Congressional
attention. The first of course was the tuna porpoise problem.
Increasingly however there have been minor interactions between marine
mammals and other commercial fisheries and in some cases with some
recreational fisheries.
Section 118 as enacted provides for an extensive process to
determine which commercial fisheries interact with marine mammals and a
process to determine the appropriate regulatory measures to reduce
those interactions. The Chairman's amendments to section 118 recognize
that there may be instances where fisheries other than commercial
interact with marine mammals. It provides the same process for those
fisheries for a permitted incidental take as is presently provided for
commercial fisheries. The process is still highly bureaucratic and
cumbersome.
There are 12 million saltwater recreational fishermen in the United
States. The vast majority of them fish with traditional recreational
rods and reels. They have a very remote, if any, possibility of an
injurious interaction with marine mammals. Placing them in the section
118 process would subject them to a new regulatory burden, which I
doubt very much the average recreational fishermen would find easy to
participate in. Nor would it be a process that would provide much
benefit to the marine mammals being protected. A little common sense
needs to be applied here. Recreational fishing done with rod and reel
ought to be an exempt activity under the MMPA. Barring that Congress
ought to make it very clear that rod and real recreational fishing
ought to be classified by NOAA Fisheries as a category (1) (A) (iii)
activity.
We are aware that there may be recreational activities like gill
netting for spot in North Carolina which may have a higher incidence
interaction with marine mammals. Clearly that kind of activity ought to
be included within the section 118 process. It is my understanding that
recreational gill netting in North Carolina may involve as many as
100,000 trips a year. Personally I don't think of it as a recreational
activity and would ban it entirely. But that is a decision best left to
the fine folks in North Carolina. To my knowledge this kind of activity
only occurs in North Carolina and Alabama. If there is an interaction
with marine mammals then the participants ought to be regulated to
reduce that interaction. Congress does not however need to open the
door to including 12,000,000 anglers into the mix. A simple
clarification in HR. 2693 would ensure this result.
Again, I appreciate the opportunity to be here this morning and I
would be happy to answer any questions the Committee members may
have.
______
Mr. Gilchrest. Thank you very much, Mr. Hayes.
Mr. Hayes. Thank you.
Mr. Gilchrest. We look forward to that.
Ms. Steuer.
STATEMENT OF KAREN STEUER, SENIOR POLICY ADVISOR, NATIONAL
ENVIRONMENTAL TRUST
Ms. Steuer. Thank you, Mr. Chairman--both Mr. Chairman--and
Mr. Pallone. I am a senior policy advisor to the National
Environmental Trust, but I am testifying today on behalf of
organizations that are supported by millions of Americans from
Maine to Hawaii. We appreciate the opportunity to provide you
with our views on H.R. 2693.
While we support some of the provisions in the legislation
and appreciate being able to work with you on it, there are
critical changes from existing law that we believe would
significantly weaken current levels of protection for marine
mammals. And it is those provisions that I want to focus on
today.
We have concerns about some of the bill's proposed changes
for take reduction plans. The goal of a take reduction plan,
under current law, is to reduce the mortality of marine mammals
to sustainable levels within 6 months of its implementation.
H.R. 2693's combined changes to the current time lines would
delay this objective by approximately a year. And in some
areas, that means that potentially hundreds of additional
marine mammal deaths will occur.
Although NMFS's record on meeting the exist act's time
lines is abysmal, we have to mention that many of the delays
have been caused actually by political intervention in the
process. And extending the timeframes, as H.R. 2693 does, will
not facilitate better implementation or conservation.
The intention behind the procedures established in Section
118 in 1994--and I am helped to write them, so I am guilty--was
to bring all the stakeholders together, and to bring them
together in a consensus-building process, with the single goal
of reducing unsustainable incidental takes. But this approach
is only successful if stakeholders enter the negotiations in
good faith and if they believe that the consensus-building
process is their only option.
Rather than amend the act to modify the deadlines, we would
really like to urge Members of Congress and State officials to
refrain from intervening in the Section 118 process once it is
under way, and allow it to proceed with its current statutory
requirements. Under these circumstances it will work, and
actually has worked very well on the West Coast. The Pacific
Coast team has done a great job on take reduction and putting a
plan together and beginning its implementation. So we know that
the process can work.
H.R. 2693 fails to address the greatest remaining threat to
the most endangered large whale in U.S. waters, the North
Atlantic right whale, which was already mentioned in earlier
testimony today. NMFS regulates, or at least tries to regulate
fishermen whose gear causes approximately half of the human-
induced mortalities of this species, through the take reduction
team process. However, the Agency has to date made no attempts
to regulate shipping traffic, even though we have solid
documentation that ship strikes cause the other 50 percent of
the mortalities.
We would therefore urge that the Committee consider
including language in the bill that creates a ship-strike
mortality reduction plan, using the take reduction plan model.
And we would be happy to work with the Committee on language to
this effect.
On to harassment. The bill changes what we believe is the
most fundamental provision of the MMPA by amending this
definition. As previously discussed, it shifts the burden for
Level A harassment from ``potential to injure'' to
``probability to injure,'' which we believe is a far more
ambiguous and less protective threshold than currently exists.
H.R. 2693 also changes the existing definition of Level B
harassment by requiring a biologically significant disruption
of activities, but it doesn't define what biologically
significant disruption means. Nor is that a commonly used
scientific term.
The bill also adds a proposed third tier of harassment, as
we discussed earlier, for activities directed toward specific
animals. The permitting standard in that tier of harassment is
one of ``disrupting behavior,'' which is different from the
other standard of Level B harassment of a ``biologically
significant disruption.'' So in effect, if you adopt this
approach, you have created three different standards of
harassment, but you haven't defined any of the terms included
in those standards. And we think that is a very dangerous way
to go.
We would instead urge the Committee to retain the current
definition of Level A, and to amend Level B harassment as
follows: Any act that disturbs or has the potential to disturb
a marine mammal or marine mammal stock in the wild by causing
disruption of biologically significant activities, including,
but not limited to-- and then going on to list the activities.
And I know you have heard this before, but this definition
almost exactly mirrors the definition proposed by the National
Research Council. It replaces your ``biologically significant
disruption'' with what we believe is the far more
scientifically definable ``biologically significant
activities.'' And considering that the NRC has just begun plans
to undertake a new study entitled, ``Describing biologically
significant marine mammal behavior''--and they are about to
convene a panel to do so--we believe it would be far wiser to
use this wording, if indeed it is prudent to amend the
definition at all at this time when the NRC is undertaking this
study.
Finally, H.R. 2693 proposes to establish a general
authorization for incidental takes. Unlike other general
authorizations in the MMPA, whose scope is limited to a
particular activity and type of take, such as commercial
fishing, the current language that you propose applies to any
activity. It doesn't restrict the scope of the take, it is of
unlimited duration, it has no requirement for the applicant to
provide information on the type of activity or the number of
animals impacts, and it has no requirements for reporting.
As currently written, this is a broad authorization that
would effectively create an escape clause that allows user
groups to bypass the incidental take permitting process
entirely. I believe that--
Mr. Gilchrest. Karen, I am just going to-- We have
potential for votes very soon, and so I am going to have to
limit the testimony to as close to 5 minutes as possible. And
we will continue to talk to you about the words and the
placement of the adverbs, adjectives, pronouns, dangling
participles. We are going to do all that. And that is why we
are going through this process.
So I am really going to have to ask you to just finish up
with your last sentence so we can move on.
Ms. Steuer. The last sentence is that we want to work with
you on trying to make this better, and we will do everything we
can from here on in to do that.
[The prepared statement of Ms. Steuer follows:]
Statement of Karen Steuer, Senior Policy Advisor, National
Environmental Trust, on behalf of the Following Organizations: American
Cetacean Society; Animal Protection Institute; Cetacean Society
International; Defenders of Wildlife; Greenpeace; Humane Society of the
United States; International Marine Mammal Project of Earth Island
Institute; International Wildlife Coalition; National Environmental
Trust; Natural Resources Defense Council; Oceana; Society for Animal
Protective Legislation; Seaflow; The Ocean Conservancy; Whale and
Dolphin Conservation Society; and World Wildlife Fund
Mr. Chairman and Members of the Resources Committee:
My name is Karen Steuer. I am a Senior Policy Advisor to the
National Environmental Trust, and I am testifying today on behalf of
organizations supported by millions of Americans from Maine to Hawaii.
Our groups represent a broad range of marine mammal expertise,
including experience in field research on cetaceans and pinnipeds,
working with whale watching operations, rescuing stranded whales and
dolphins, participating in court-related actions to defend U.S. marine
mammal protection laws, serving on take reduction teams, and drafting
previous legislative changes to the Marine Mammal Protection Act
(MMPA.)
We appreciate the opportunity to provide you with our views on H.R.
2693, and have the following comments on the provisions contained in
the legislation, and on additional provisions we believe should be
included in the reauthorization of the Act. The following analysis
follows the structure of H.R. 2693.
Section 4: Limited export authority. The bill corrects a problem
created by the 1994 amendments to the Act, which allowed a Native of
Canada, Greenland, or Russia to import legally obtained marine mammal
products into the United States as part of personal travel or cultural
exchange, but failed to address the export of those products at the end
of the travel. We support this correction.
Section 5: Authorization of appropriations. We would strongly urge
that the Committee consider increasing the authorization levels in H.R.
2693, which are considerably less than the agencies require to properly
fulfill their obligations under the MMPA. In previous testimony before
this Committee regarding changes to the statute proposed by the
Department of Defense, we emphasized that in our view the arguments and
characterizations raised by DOD did not arise from the language of the
statute, but instead reflected process problems residing within the
wildlife agencies. It would be disingenuous to insist that the agencies
correct these problems, take on the additional burdens contained in
this legislation and recommended elsewhere, and refuse to provide them
with the funding necessary to complete those tasks. Increasing their
obligations without concurrently increasing the authorization levels is
a recipe for disaster--for the agency, the statute, the stakeholders,
and marine mammal conservation.
Section 6: Take reduction plans.
Non-commercial fisheries: We recognize that 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 those in commercial fisheries. The 1994 amendments to the
MMPA added Section 118 to the Act as a new bycatch management regime
for commercial fisheries. In order for these provisions to be
accurately and fairly implemented, they must now be extended to non-
commercial fisheries where appropriate. However, we are concerned that
the amendments proposed in H.R. 2693 are too narrowly focused and do
not include all the references necessary to bring this subset of non-
commercial fisheries under the authority of the MMPA's Section 118. The
intention behind the language in H.R. 2693 is unclear; if the
Committee's intention is to apply the Act equally to all fisheries
which incidentally take marine mammals, we would recommend that the
bill be amended to use the approach contained in sections 403 and 404
of the Administration's proposal.
Timelines: The goal of a take reduction plan is to reduce, within
six months of implementation, the mortality or serious injury of marine
mammals accidentally entangled in fishing operations to sustainable
levels. H.R. 2693 would (1) delay this objective by three months; (2)
nearly double the period for review and finalization of a take
reduction plan; and (3) remove the existing requirement that a take
reduction team be convened no later than 30 days following the
publication of a stock assessment indicating that incidental takes for
that stock exceed the Potential Biological Removal. These delays will
result in potentially hundreds of additional marine mammal deaths, and
we strongly oppose these amendments.
Unfortunately, NMFS' record on following the existing time frames
and procedures for take reduction plans mandated by the Act is abysmal.
For example, shortly after the 1994 amendments were enacted, NMFS
stated that reduction of harbor porpoise bycatch was a priority, given
the high levels of mortality and the likelihood that an Endangered
Species Act listing was imminent. Regardless of their stated
intentions, NMFS convened the team far behind the mandated schedule
and, although the team reached consensus on a take reduction plan, the
agency delayed publishing the plan for more than 18 months, during
which time dozens, if not hundreds, more harbor porpoise were
needlessly lost to incidental take.
In another example, NMFS did not convene a take reduction team for
large whales until forced to do so through a lawsuit, although it was
widely recognized that one of the species involved, the North Atlantic
right whale, was highly endangered and clearly subject to unsustainable
incidental takes in fishing gear. In response to the lawsuit, NMFS
submitted a plan to the court. Political intervention resulted in NMFS
substantially weakening the plan to the point at which it merely
allowed existing fishing practices as bycatch reduction measures. As a
result, incidental takes remain at unsustainable levels, and again the
agency finds itself in court.
The agency can and should meet the current deadlines mandated by
the Act. Extending the timeframes as H.R. 2693 does will resolve none
of these problems, nor will it facilitate better implementation or
conservation. The intention behind the procedures established in
Section 118 was to bring all stakeholders together to reach consensus
on methods of reducing unsustainable levels of incidental takes of
marine mammals within a relatively short time frame. However, this
approach can only be successful when stakeholders enter the
negotiations in good faith, understanding that the consensus-building
process is the best option, and when the agency meets its statutory
mandates. Rather than amend the Act to modify deadlines, we urge that
Members of Congress and state officials refrain from intervening in the
take reduction team process, and allow it to proceed with current
statutory requirements. Under those circumstances, there is every
reason to believe it will work.
Take reduction team members: We support the amendments in H.R. 2693
that would add broader agency representation to take reduction teams,
including representatives from the office of NOAA General Counsel, law
enforcement, NMFS fisheries scientists, and a representative of the
appropriate NMFS Regional Administrator. We believe these changes can
serve to provide crucial guidance to the team to ensure that the
proposed measures can be easily translated into regulatory language,
are enforceable, and are not in conflict with other fishery management
measures. Adding this additional expertise during the early stages of
the take reduction plan process should also assist the agency in
ensuring more timely review and implementation of proposed take
reduction plans.
Changes to take reduction plans: We support the amendment in H.R.
2693 requiring the Secretary to reconvene take reduction teams to
explain differences between the draft plan proposed by the team and the
published plan approved by the Secretary.
Support for take reduction efforts: The MMPA currently authorizes
the Secretary to accept gifts, devises, and bequests to carry out
Section 118, and H.R. 2693 clarifies that this authorization extends to
observer, research, and education and outreach programs. It is our view
that this provision will help to provide NMFS with the ability to work
cooperatively and effectively with various user groups in the
implementation of take reduction plans, and we support its inclusion.
Right whales and ship strikes: There is currently no provision in
H.R. 2693 to address one of the greatest conservation threats to the
most endangered large whale found in U.S. waters, the North Atlantic
right whale. NMFS currently regulates fishermen, whose gear causes
approximately 50% of the human-induced mortalities of this species,
through the take reduction team process. However, the agency has to
date made no attempts to regulate shipping traffic, even though ship
strikes have been documented to cause just as many right whale deaths.
We therefore propose including language in the reauthorization that
would create a ship strike mortality reduction plan, using the take
reduction plan model. We would be happy to provide the Committee with
draft language.
Section 7: Pinniped research. Pinnipeds have never been the primary
cause of the decline of a salmonid, nor has it been scientifically
demonstrated that they have been a primary factor in the delayed
recovery of a depressed salmonid species. 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.
We support H.R. 2693's proposed amendment to provide for research
into non-lethal removal and control of nuisance pinnipeds. We
recommend, however, that this section of the bill be amended to: (1)
require the Secretary to develop a research plan to guide research on
the non-lethal removal and control of nuisance pinnipeds; (2) clarify
that the development and testing of safe, non-lethal removal,
deterrence and control methods shall provide for the humane taking of
marine mammals by harassment; (3) include other organizations and
individuals, such as the conservation community, in addition to
representatives of commercial and recreational fishing industries, in
the development of the research program; (4) require the Secretary to
make the annual report to Congress available to the public for review
and comment; and (5) authorize the Secretary to accept contributions to
carry out this section, as in Section 118.
Section 8: Marine Mammal Commission. We oppose the provision in
H.R. 2693 that states: ``except that no fewer than 11 employees must be
employed (by the Marine Mammal Commission)--at any time.'' Removing
this lower threshold may provide some members of Congress with an
incentive to decrease appropriations and, in turn, staff capacity on
the Marine Mammal Commission. Congress should instead rely on the
Commission to fulfill the role for which it was originally created: to
provide crucial expertise and guidance in the oversight and
implementation of the Act. The Commission should be empowered to expand
its authority to promote and undertake visionary dialogues and
strategic thinking that will advance the purposes and policies of the
MMPA.
We support the provision to change the per diem rate in the Act,
which in our opinion is too low. Consequently, the current provision
precludes the Marine Mammal Commission from securing the services of
most experts and consultants. By removing this restriction, the
Commission will be brought under the government-wide restrictions for
the payment of experts and consultants.
We recommend that the authorization of appropriations proposed for
the Marine Mammal Commission be increased to a more realistic figure of
$3,400,000.
Section 9: Scrimshaw exemption. We do not oppose this provision,
which extends the permits for individuals with pre-ESA ivory, to allow
them to continue to possess, carve, and sell the ivory until 2007.
Section 10: 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. H.R. 2693
proposes to change this public notification process to a semiannual
summary of all such permits issued or denied. We oppose 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 removing the public
comment process, the Fish and Wildlife Service should work to ensure
that these provisions are effectively enforced and do not result in the
illegal take or a negative change in the status of stocks that are
currently depleted.
Section 11: Captive release prohibition. We support the provision
in H.R. 2693 amending the MMPA to clarify that the Act expressly
prohibits any person subject to the United States' jurisdiction from
releasing a captive marine mammal unless specifically authorized to do
so. In the absence of mandatory precautionary measures established as
conditions of a captive release permit, potential harm might result, to
both the animals released and to wild populations they encounter, in
the form of disease transmission, inappropriate genetic exchanges, or
disruption of critical behavior patterns and social structures in wild
populations. Any such permit requirement must be subject to the same
jurisdictional and public review requirements that apply to other MMPA
permits.
Section 12: Stranding and entanglement response. Each year a
growing 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 and to
grant authorization to selected organizations or individuals to
disentangle animals whose lives are threatened. Disentanglement has
proven to be 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, we support the proposed amendments to Title IV of the MMPA to
include entanglement situations and to define the term
``entanglement''.
Section 13: Definition of harassment. On May 6 the Resources
Committee held a hearing on changes proposed to the MMPA by the
Department of Defense, among them a change to the definition of
harassment. During that hearing, many of the organizations represented
by this testimony expressed grave concerns regarding the proposed
changes. We noted that in our view any problems with the existing
harassment definition are not due to ambiguities in the statutory
language, but to fundamental process problems, including: inconsistency
in reviews of permit applications, conflicts in the process that
dovetails the MMPA with the National Environmental Policy Act, and a
lack of cooperation among federal agencies. If the problem lies in
process issues that go uncorrected, changing the definition is likely
to result only in more confusion, more delays in granting permits, and
more lawsuits. Nothing will be gained, and marine mammal conservation
will undoubtedly suffer as a result.
The current definition of ``harassment'', added to the Act in 1994,
is ``
``The term ``harassment'' means any act of pursuit, torment, or
annoyance which--
(Level A) has the potential to injure a marine mammal or marine
mammal stock in the wild; or
(Level B) 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.''
H.R. 2693 would shift the burden for Level A harassment from ``has
the potential to injure'' to ``has the probability to injure.'' We
oppose this change, and are of the view that the proposed language is
far more ambiguous than the existing definition. The term ``potential''
is clear and requires no further evaluation of the probability of
injury, whereas ``probability'' is undefined, subjective, and likely to
result in confusion among potential permittees. An example of the
inherent difficulty with the ``probability'' would be the issue of
ships entering Boston Harbor, transiting a National Marine Sanctuary
and habitat for a number of endangered or threatened large whales.
Evidence shows that ships entering Boston do occasionally strike and
kill whales: the potential for ship strike is clear, and dictates that
preventative measures should be mandated to the extent practicable. But
the probability of an individual ship striking and injuring a whale
varies tremendously, depending on season, ship speed, number of ships
entering the harbor on any given day, and other factors. It would be
virtually impossible to determine or enforce, resulting in even more
confusion among stakeholders.
H.R. 2693 also weakens the existing definition of Level B
harassment by requiring a ``biologically significant'' disruption of
activities, including, but not limited to, migration, breeding, care of
young, predator avoidance, defense, or feeding. The legislation does
not define the term ``biologically significant disruption,'' nor is it
a commonly used scientific term...'' The insertion of this term would
add harmful and unnecessary ambiguity to the definition, increasing
regulatory uncertainty for regulated entities, and potential risk for
protected marine mammals.
Finally, the bill would add the Administration's proposed third
tier of harassment to include activities ``directed toward'' a specific
animal or group of animals and ``likely to impact'' those animals by
``disrupting behavior''. While we recognize the intent in using this
tier to regulate activities such as dolphin feeding, we would reiterate
previously expressed concerns regarding ``directed'' activities. In our
view, this definition would also apply to scientific research and whale
watching operations. We would also note that the permitting standard
included in this provision of ``disrupting behavior'' differs from the
standard included in the other section of Level B harassment, which
requires a ``biologically significant disruption.''
If the Committee adopts this approach, it has in effect created
three different standards of ambiguously defined harassment without any
clarification as to which standards would apply to whom and under what
circumstances. If enacted, we have little doubt that this definition
will result in far more confusion, more lawsuits, and less protection
for marine mammals, and that we will be debating yet another approach
to the definition in the next reauthorization of the MMPA.
Our organizations urge the Committee to instead retain the current
definition of Level A harassment, and to amend Level B harassment as
follows:
any act that disturbs or has the potential to disturb a marine
mammal or marine mammal stock in the wild by causing disruption
of biologically significant activities, including, but not
limited to, breathing, communication, sheltering, migration,
breeding, care of young, predator avoidance or defense, and
feeding or foraging.
This definition is similar to that proposed by the National
Research Council, and has the added advantage of replacing the
Committee's proposed ``biologically significant disruption'' with the
far more easily understood and scientifically definable ``biologically
significant activities.'' It also clarifies the concern expressed by
others that the current definition could apply to de minimus
activities--with the addition of the descriptive term ``biologically
significant activities,'' de minimus activities are specifically
excluded from consideration. In addition, by defining harassment as
``any act that'' there is no need for a separate clause related to
directed activities, as any act includes both incidental and directed
activities.
Section 14: Incidental takings of marine mammals. H.R. 2693
proposes to eliminate key conservation elements that restrict the scope
of incidental take to ``small numbers'' of marine mammals while
engaging in a specified activity ``within a specified geographic
region.'' We oppose the removal of these provisions.
Retention of these limitations is a vital component of the
conservation principles embodied in the MMPA. Under the current
language, regions of operation and numbers of animals impacted are
drawn as narrowly as possible to accomplish the proposed activity;
environmental review then takes place on that basis. The status of
marine mammal conservation varies from species to species and from
ocean to ocean, and requires that activities be considered on a case-
by-case basis. Geographic regions serve different biological purposes
for different species, and actions that have little or no impact on one
species within a specified region may have grave consequences for
another.
Finally H.R. 2693 proposes to establish a general authorization for
incidental takes. The intent of this provision is unclear. Unlike other
general authorizations in the MMPA that limit the scope of the
authorization to a particular activity and type of take (such as
commercial fishing), this authorization applies to any activity; does
not restrict the scope of the take; is of unlimited duration; has no
requirement for the applicant to provide information on the type of
activity or number of animals impacted, proposed monitoring and
mitigation measures; and has no requirements for reporting. In effect,
this broad authorization creates an escape clause that allows user
groups to bypass the incidental take permitting process entirely, and
we believe there is no basis for a general authorization of this scope,
which would render the MMPA's conservation goals and mandates virtually
meaningless.
Conclusion. It is our view that many of the most important
provisions of the MMPA, including the harassment definition and
conditions for incidental takes of marine mammals, would be
significantly weakened by H.R. 2693. We urge the Committee to consider
these concerns, and look forward to working cooperatively with the
Members and staff on these issues in the future.
______
Mr. Gilchrest. Thank you very much.
Ms. Steuer. Thank you.
Mr. Gilchrest. Mr. Johnson, welcome, sir.
STATEMENT OF CHARLIE JOHNSON, EXECUTIVE DIRECTOR, ALASKA NANUUQ
COMMISSION
Mr. Johnson. Thank you, Mr. Chairman. I am the executive
director of the Alaska Nanuuq Commission, and I am also
representing the Indigenous Peoples Council on Marine Mammals,
which was formed in 1994 to fight for co-management.
We have worked very diligently the last 2 years with the
U.S. Fish and Wildlife, the National Marine Fisheries, and the
Marine Mammal Commission to come up with a language for the
reauthorization of MMPA. This is very different from a few
years ago. When we first got together, we had somewhat of an
adversarial relationship, but we have learned to work together
and to trust each other.
The language that we have worked up with these agencies is
largely reflected in the administration bill. And I notice in
reading your bill that it also puts in most of the language
that was in the administration bill, and we thank you for that.
The particular points that we were working on were the
ability for us to manage before depletion and to enforce
regulations, that is presently absent in the MMPA. And I notice
you included those in this bill, and we thank you for that.
One thing that we would like to see, however, in this bill
is the disclaimer language that is in the administration bill,
in that Alaska Natives live in a situation where we have over
200 political tribes and we, as Alaska Native Marine Mammal
commissions, get our authority through these tribes. And for
that reason, we would like to see disclaimer language in there
that says something to the effect that nothing in this bill
affects the political status or the authorities of the tribes.
And that was in the administration bill. We would like to see
that.
Also missing from the administration bill, which we see you
have put back in--and we want to thank you for that--and that
is the cultural exchange between indigenous peoples of the
Arctic. And we thank you for doing that.
We, however, would like to also see in the bill a ban on
the use of aircraft and a ban on the sale of gall bladders. We
feel that that is necessary for the protection of marine
mammals that we depend upon heavily for subsistence.
Mr. Gilchrest. Mr. Johnson, the ban on aircraft in--'
Mr. Johnson. In hunting. That is not necessarily for--we
understand that there is a need for aircraft for doing
research.
One other thing that we would like to see, for the Alaska
Nanuuq perspective, we are working with polar bears, which are
the U.S. Fish and Wildlife. You know, 95 percent of the polar
bears' diet is seals. And ice seals are in NMFS. And we would
like to work with ice seals, but it is very difficult to get a
permit from NMFS to even take samples off of harvested animals.
The Alaska Native Harbor Seal Commission, for example, has been
trying to get a permit to take samples off of harvested animals
for years and still has not been able to get a permit. Now, I
can go out and shoot a seal, I can take it home and eat it, dry
it, trade it, whatever, but I can't send a sample to the
University of Alaska, for example, to have it tested for
nutritional values or contaminants without a permit. And to us,
it doesn't make any sense to have a separate agency manage--it
makes ecological sense for ice seals, in particular, and harbor
seals to be under Fish and Wildlife, for there is little
interaction with fisheries.
Thank you.
[The prepared statement of Mr. Johnson follows:]
Statement of Charles Johnson, Alaska Nanuuq Commission, on behalf of
the Indigenous Peoples Council on Marine Mammals (IPCoMM)
Mr. Chairman, 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. I am
also representing the Indigenous Peoples Council on Marine Mammals or
IPCoMM.
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 descendants 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. At a meeting on July 10, 03, IPCoMM
voted to also seek this move of seal management.
Additionally it has been very difficult to obtain a permit from
NMFS to collect samples from harvested animals. The Alaska Native
Harbor Seal Commission has been seeking a permit for several years and
is now collecting samples under the University of Alaska permit.
Obtaining a permit from the U.S. Fish and Wildlife Service is as simple
as getting a letter.
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.
______
Mr. Gilchrest. Thank you very much, Mr. Johnson. You gave
us a very specific, concise list, and that will be very
helpful.
Dr. Wells?
STATEMENT OF DR. RANDALL WELLS, CONSERVATION BIOLOGIST, CHICAGO
ZOOLOGICAL SOCIETY, MOTE MARINE LABORATORY
Dr. Wells. Thank you, Mr. Chairman, Mr. Pallone. My name is
Randall Wells. I am a conservation biologist with the Chicago
Zoological Society based at Mote Marine Laboratory in Sarasota,
Florida, where I also serve as director of Mote's Center for
Marine Mammal and Sea Turtle Research.
I began studying dolphins 2 years before the implementation
of the Marine Mammal Protection Act and I have seen many of the
accomplishments of this act since that time. Our understanding
of the scope of threats to which marine mammals are exposed has
changed over the years. We need to be able to adjust protection
measures in response to a changing world. Proposed changes to
the act make some of these adjustments, expanding the scope of
protection beyond that related to directed takes and commercial
fisheries. I am honored to have been invited to provide
testimony in support of reauthorization of this important act.
Much of the basis for my testimony is derived from research
on bottlenose dolphins in Sarasota Bay, Florida. Thirty years
ago, we discovered that at least some in-shore dolphins live in
resident communities. We are now studying four generations of
residents, including many known since 1970, along with their
calves, grandcalves, and great-grandcalves. Knowledge of multi-
generational residency provides important perspective for
understanding exposure to threats and can be key to providing
appropriate protection. In-shore dolphins arguably face a
larger variety and greater intensity of human impacts than many
marine mammals because of their proximity to where we live,
work, and recreate.
I am pleased that recreational fisheries with incidental
mortality and serious injury of marine mammals will now be held
accountable for their takes. When recreational fishers are
using the same gear as commercial fishers in the same waters,
comparable mortalities and serious injuries are to be expected.
Including recreational fisheries in the list, leading to
observer coverage, will yield a more complete basis for
managing stocks and should be more equitable for commercial
fishers.
The prohibition on releasing captive marine mammals is also
needed. We can't necessarily assume that releasing animals into
the wild is in the individual's or the host population's best
interest. My experience from my own dolphin-release experiment
and from serving as an expert witness for NOAA in a case
involving a failed dolphin release point to the need for
requiring scientific research permits.
Increased support for the Marine Mammal Health and
Stranding Response Program is also needed. This program
provides a window to serious threats that are less obvious than
fishing gear. The first indications of marine mammal health
problems come from stranded animals. The program brings much-
needed coordination to stranding response and health research.
Strandings and health research have demonstrated
accumulation of pervasive pollutants in marine mammals. PCB
concentrations greater than those of concern for human health
have been documented. In bottlenose dolphins, high PCB
concentrations apparently correlate with increased first-born
mortality, reduced immune system function, and reduce male
reproductive hormones.
Congress should consider funding a research program to
quantify the impacts from pervasive environmental threats.
Looking at chemical concentrations in the environment in order
to establish their effects on marine mammals. Other pervasive
threats, such as noise, could also be included. Cumulative
risks could then be considered along with more direct takes,
leading to improved stock assessments.
The Marine Mammal Health and Stranding Response Program is
on the front line for detecting emerging toxic chemicals,
diseases, and pathogen pollution. The authorization for annual
funding from MMPA funds into the Marine Mammal Unusual
Mortality Event Fund is essential for emergency responses. I
hope you will also consider reauthorizing complementary funding
for the John Prescott Marine Mammal Rescue Assistance Grant
Program, which supports non-emergency stranding response
operations and research. Together, these funds allow
consideration of marine mammals as sentinels of ocean and human
health.
Proposed harassment definition changes should reduce human
interactions, such as touching, feeding, or swimming with wild
marine mammals. For example, since 1990 we have observed Beggar
and his associates, wild dolphins fed by boaters. Law
enforcement has been limited because the harassment and feeding
prohibitions already in the regulations were considered
unenforceable. With NOAA Fisheries Protect Wild Dolphins
program, we evaluated the effectiveness of education in
reducing this problem, and determined that law enforcement was
also needed. The new definition should provide sufficient
clarity to support prosecutions.
The new harassment definition still requires scientists to
apply for research permits. This is a burdensome but necessary
process. My own research activities, ranging from observations
to hands-on sampling of bottlenose dolphins, are considered
harassment. While developing ten permit applications since
1984, I can't say that my research has ever been delayed by the
permitting process.
Some other harassment issues are particularly vexing with
regard to practical regulatory solutions. Boats cause
disturbance and injuries. About 4 percent of Sarasota Bay
dolphins bear propeller scars acquired during periods of heavy
boat traffic and boat races, which attract thousands of
spectator boats. During a typical dolphin's day, powerboats
pass within 100 yards every 6 minutes, leading to significant
changes in dive patterns and acoustic communication. The
cumulative effects of repeated disturbance are unknown.
In conclusion, the proposed changes to the MMPA include
significant advances. I hope that this momentum continues for
further adjusting our management approaches to respond to
emerging threats to marine mammals. Fishery impacts have not
been eliminated, but many mitigation measures have been
developed during the first 30 years of the MMPA. Similarly, we
should begin to look for solutions to some of the emerging and
potentially equally dangerous pervasive threats to marine
mammals and consider a more complete set of threats in stock
assessments.
This concludes my testimony. I would be pleased to respond
to your questions.
[The prepared statement of Dr. Wells follows:]
Statement of Randall S. Wells, Conservation Biologist, Chicago
Zoological Society, and Director, Center for Marine Mammal and Sea
Turtle Research, Mote Marine Laboratory
Mr. Chairman and distinguished members of the Committee, my name is
Randall S. Wells. I am a Conservation Biologist with the Chicago
Zoological Society, and I am based at Mote Marine Laboratory, in
Sarasota, Florida, where I serve as Director of Mote's Center for
Marine Mammal and Sea Turtle Research. I began my career of studying
dolphins, whales, and manatees in 1970, two years before the
implementation of the Marine Mammal Protection Act. I have therefore
had opportunity to monitor the many accomplishments of this Act over
time. I have also seen our understanding of the scope of threats to
which marine mammals are exposed change during this same period. The
ability to adjust marine mammal protection measures in response to a
changing world is crucial. A number of the proposed changes to the Act
make these much-needed adjustments. I am truly honored to have been
invited here today to provide testimony in support of reauthorization
of this important Act.
Introduction
Much of the basis for my statements today is derived from my long-
term study of bottlenose dolphins in Sarasota Bay, Florida. This
ongoing research is conducted by a large team of collaborating
scientists and students from around the world. In the early 1970's my
colleagues and I discovered that, at least in some parts of the
species' range, bottlenose dolphins in bays, sounds, and estuaries live
in year-round resident communities. We are currently monitoring about
140 resident dolphins of four generations in Sarasota Bay, including
about 30% of those we first identified in 1970, as well as their
calves, grand-calves, and great-grand-calves. This community is one
piece of a mosaic of such communities along the central west coast of
Florida. Knowledge of the long-term, multi-generational association
between dolphins and specific geographic ranges provides important
perspective for understanding the exposure of these animals to a
variety of threats, and can be key to providing appropriate protection.
Inshore bottlenose dolphins arguably face a larger variety and greater
intensity of human impacts than many marine mammal stocks in United
States waters because of their proximity to where we live, work, and
recreate.
Marine mammals are complex creatures living in complex ecosystems.
It would be unreasonable to expect that a given stock of marine mammals
is typically exposed to only a single threat from human activities at
any given time. Depending on where they live, stocks of marine mammals
may be faced with a suite of threats of human origin, including
chemical and noise pollution, habitat degradation or loss, fisheries
interactions, and harassment. The proposed language continues to expand
the scope of protection for these animals beyond that related to
directed takes and incidental takes in commercial fisheries.
Marine Mammal Bycatch Reduction Initiatives
The inclusion of recreational fisheries in the lists of fisheries
that have frequent or occasional incidental mortality and serious
injury of marine mammals is an important step forward. As a charter
member, and former Chair, of the Atlantic Scientific Review Group, a
panel established under the 1994 amendments to the Marine Mammal
Protection Act to provide guidance to NOAA Fisheries and the U.S. Fish
and Wildlife Service regarding the scientific basis for management of
marine mammal stocks in the Atlantic Ocean and Gulf of Mexico, I am
well aware of complications imposed by the previous exemption of
recreational fisheries from marine mammal regulations governing
commercial fisheries in the same waters. When recreational fishers are
using much the same gear as the commercial fishers, comparable
mortalities and serious injuries are to be expected, but identification
of the specific source of the mortality or injury when examining a
carcass or injured animal is often impossible. Evaluation of fishery
takes of marine mammals relative to Potential Biological Removal
typically involves extrapolation from data from observers placed on
commercial fishing boats. Observer data from commercial vessels alone
lead to underestimates of mortality and serious injury because they do
not include takes in recreational fisheries. Regulations limited to
commercial fisheries only deal with a portion of the problem. Inclusion
of recreational fisheries in the list of fisheries, with associated
observer coverage as appropriate, will provide a much more complete and
accurate basis for managing impacted stocks, and will create a more
equitable situation for commercial fishers. While this change to the
list of fisheries is an important and overdue step, it is only one step
toward considering all sources of lethal take or serious injury for
effective management of marine mammal stocks, as I will discuss later.
Captive Release Prohibition
The prohibition on captive release is a welcome addition to the
Act. It cannot necessarily be assumed that releasing a captive marine
mammal into the wild is in the individual's or host population's best
interests. My experience with this issue includes conducting the first
(and one of very few) systematic study of the release of captive
dolphins back into the wild, with the release of two bottlenose
dolphins back into their native waters of Tampa Bay in 1990. This
release was well-documented and successful, and the dolphins have been
observed more than 10 years post-release, apparently fully-integrated
into local dolphin communities.
In addition, I served as an expert witness for NOAA Fisheries in
its 1999 case involving the illegal release of two dolphins into the
waters of the Florida Keys. The releasers argued that NOAA Fisheries
could not require them to operate under the conditions of a Scientific
Research Permit. The two ex-Navy dolphins were not properly prepared
for release, nor did they receive appropriate care at the holding
facility. When the releasers learned that the government was planning
to confiscate the animals because of animal welfare violations, the
dolphins were taken offshore and released in waters hundreds of miles
away from their original capture site, in unfamiliar habitat. The
release occurred in front of a foreign film crew that paid for the
opportunity. The release failed. The dolphins had separated and were
found near shore, in poor condition, seeking contact with humans. The
individuals responsible for the release were found guilty by a Federal
Administrative Law Judge of violating the MMPA and were ordered to pay
$59,500 in civil penalties.
The release of long-term captive marine mammals into the wild can
pose serious threats to the release candidates and to the host wild
populations. Released dolphins may bring new diseases to wild
populations, diseases they have obtained while in captivity, but to
which the wild populations have had no previous exposure and therefore
no immunity. Dolphins released outside of their original range may
affect the genetic structure of the wild populations through
interbreeding. Our research has demonstrated significant genetic
differences across bottlenose dolphin habitats, reflecting long-term
adaptations to specific suites of ecological influences. Released
dolphins may also disrupt stable social structures in wild populations,
established over many generations. Prior to release of captive animals,
safeguards must be in place to ensure that: 1) the risks of disease
transmission and inappropriate genetic exchange are minimized, 2)
adequate preparations have been made and optimal conditions are
established for the release candidate to survive upon return to the
wild, 3) an adequate follow-up monitoring program is in place to track
the released animal as well as any impacts it may be having on the wild
population, and 4) contingency plans are in place to recover the
released animal should it fail to thrive. The limited state of our
knowledge in the area of release of long-term captive marine mammals
into the wild is such that all releases must be considered
experimental, and as such should only be conducted under a Scientific
Research Permit.
Marine Mammal Health and Stranding Response
Increased support for the activities of the Marine Mammal Health
and Stranding Response Program should be considered a high priority.
This program is crucial for providing a window to some of the serious
threats to marine mammals that are less obvious than fishing gear, but
of equal concern for the future of marine mammal stocks. As a result of
my involvement with marine mammal strandings for more than 33 years,
and my field research on dolphin health during the last 15 years, I
fully appreciate the challenges of understanding the role of human
activities in marine mammal health and reproduction problems. Some of
our first indications of large scale health problems in marine mammals
come from examination of sick or dead animals that wash up on shore.
From examination of these cases and tissues collected from the animals,
scientists can begin to understand relationships between marine mammal
health and human activities. The Marine Mammal Health and Stranding
Response Program brings a much-needed level of coordination to
stranding response, including oversight of: 1) the activities of the
people and institutions that volunteer to participate in the U.S.
Stranding Network, 2) disentanglement of marine mammals from lines or
gear, 3) rehabilitation and subsequent release of stranded marine
mammals, 4) identifying and responding to unusual marine mammal
mortality events, and 5) developing and engaging in research focused on
health-related hypotheses resulting from stranding findings. I will
provide more detail on the last two activities, as these are two of the
areas with which I am most familiar from recent interactions with the
program.
Large scale, ``unusual'' marine mammal mortality events were first
noted in the U.S. in the late 1980s. I learned from serving on
subsequent review panels that responses to these events were sometimes
delayed or incomplete due to logistical or other constraints, limiting
the information that could be derived. The Marine Mammal Health and
Stranding Response Program came about in part in response to the need
to improve responses to these events, and it has done much to meet this
goal. As a charter member of the Working Group on Unusual Mortality
Events (constituted under the Marine Mammal Health and Stranding
Response Program), I have seen the value of advance preparations for
responding to unusual stranding events. Preparations include having
appropriately-trained field personnel on call, laboratories identified
to process samples expeditiously, a panel of consultants to aid in the
design of the response and interpretation of the findings, and
appropriate financial support. It is critical to be able to mount a
systematic response in a timely manner in order to ensure the
collection of the appropriate sample materials of sufficient quality to
offer the greatest chance of accurately determining cause of death.
Stranded marine mammals have provided us with much insight into the
factors that can affect their populations. Among the more important
findings in recent years has been that of the accumulation of high
concentrations of environmental contaminant residues in the tissues of
stranded marine mammals such as dolphins. Humans have released more
than 10,000 chemicals into the environment. This pollution is pervasive
in the marine environment, and many of the chemicals of concern are
very persistent, remaining active in the environment for years or
decades. It has been suggested that marine mammals such as dolphins can
serve as sentinel species for the toxic effects of contaminants on the
marine environment, because of their position as top predators in the
marine food web. However, our understanding of the toxic effects of
these contaminants on marine mammals is incomplete. The harmful health
and/or reproductive effects of specific concentrations of some of these
chemicals on selected terrestrial mammals are known from carefully
controlled studies in which the animals are given measured doses of
contaminants. Such cause and effect relationships are largely
undetermined for marine mammals because of ethical considerations and
logistical difficulties for conducting dosing studies.
In lieu of dosing studies, ecotoxicologists, biologists, and
veterinarians working in collaboration with the Marine Mammal Health
and Stranding Response Program are taking a ``weight of evidence''
approach. Such an approach requires the collection of large enough
numbers of samples to be able to identify strong correlations between
contaminants and health or reproductive effects. Research involving
carcasses from strandings and field studies of free-ranging populations
are beginning to provide some of the requisite information to identify
apparent relationships between some contaminants and health or
reproductive effects. For example, concentrations of PCBs and related
organochlorine compounds well in excess of what would be of concern for
humans are being documented in a variety of dolphins, including killer
whales and bottlenose dolphins. In bottlenose dolphins, high
concentrations appear to be correlated with high levels of first-born
mortality, declines in immune system function, and reduced reproductive
hormone concentrations in males.
More research is needed. Consistent significant correlations from a
number of parallel tracks of investigation can provide sufficient
confidence in findings to warrant management action. To address the
threats of the new century, Congress should consider funding a major
research program to identify and quantify the impacts from pervasive
environmental threats to marine mammals, such as chemical contaminants
and noise. This program could be directed to look at the concentrations
of noise and chemicals of concern in the environment in order to
establish the effects they have on growth, survival, and reproduction
of marine mammals and stocks.
The ubiquitous nature of chemical pollutants in the marine
environment creates severe challenges for management. Many of the
compounds of current concern have already been regulated, but they
persist in the environment. Beyond regulation of chemicals of
documented concern, direct mitigation through removing compounds
already in the environment may not be practical. It is important,
however, to assess the risks to specific stocks posed by chemical
pollutants and other pervasive threats, so that the cumulative impacts
of these and more directed takes can be considered in stock
assessments. The research program proposed above should provide the
quantitative basis for improving the resolution of threat evaluations
in stock assessments. Responses to threats posed at the population
level by pervasive environmental threats may require modification of
the concept of the Take Reduction Team.
The Marine Mammal Health and Stranding Response Program is the
front line for identifying the occurrence and scale of current and
developing situations regarding marine mammal health and many of the
pervasive environmental threats. Monitoring of stranded animals and
research on wild populations provide the basis for detecting emerging
toxic chemicals, diseases, and pathogen pollution. The authorization in
H.R. 2693 for annual funding from MMPA funds into the Marine Mammal
Unusual Mortality Event Fund is a very positive step toward ensuring
that we can optimize our response to acute, large-scale marine mammal
health situations. Alternative funding for emergency response is not
available from any other sources, and grants programs, such as the John
H. Prescott Marine Mammal Rescue Assistance Grant Program, do not work,
and were not designed, for this kind of immediate response.
The Prescott grant program is very valuable, and its strength lies
in maintaining and enhancing the capabilities and operations of
stranding response programs around the country, and to provide research
opportunities, to facilitate making important advances in our
understanding of marine mammal health issues. I would like to take this
opportunity to recommend reauthorization of the Prescott program, which
is due to expire at the end of 2003. Marine mammals are closely tied to
the health of the oceans, and demonstrate tremendous potential to serve
as sentinels of ocean and human health.
Definition of Harassment
The proposed changes to the definition of harassment are most
welcome. The proposed definitions should provide sufficient clarity to
facilitate permitting and enforcement actions. The changes to the
harassment definitions should be especially helpful in controlling
burgeoning human interactions with wild marine mammals such as
touching, feeding, or swimming with them. For example, since 1990 my
colleagues and I have been monitoring a dolphin known as ``Beggar'',
aptly named from his behavior of popping up with his mouth open
alongside slow-moving boats in a narrow portion of the Intracoastal
Waterway south of Sarasota Bay. Beggar ingests a wide variety of non-
dolphin-food items that are dropped into his mouth, and bites many of
the people who reach down to touch him without offering food. There are
serious concerns about the spread of this behavior, as a number of
other dolphins that pass through Beggar's range have begun to beg as
well.
Over the years, law enforcement activity to control interactions
with Beggar and other dolphins has been minimal due to a shortage of
NOAA enforcement agents, other priorities within the agency, and a
stated reluctance to commit resources because the harassment and
feeding prohibitions already in the regulations were considered
unenforceable. Working with the NOAA Fisheries ``Protect Wild
Dolphins'' program, we participated in a program of educating the
public through brochures, posters, signage, town hall meetings, and
public service announcements. We also conducted a docent program in
which people approaching Beggar were provided with explanations of the
problems associated with feeding wild dolphins. Only about 1.3% of
passing boaters interacted with Beggar in the presence of the docent
boat. Boaters who interacted with Beggar were interviewed, and 60%
acknowledged that they knew such activities were illegal. Following
cessation of the docent program, the numbers of interactions increased
by a factor of four. Thus, it appears that the educational messages
were received, but in the absence of adequate law enforcement and the
consequences thereof, the problem persists. Similar findings have been
made by other Chicago Zoological Society scientists working at other
sites around the world. The new definitions should provide sufficient
clarity to support prosecutions for this kind of harassment, but
increased support for law enforcement activities along with continuing
educational efforts will be necessary to begin to control these kinds
of situations that are clearly harmful to marine mammals.
The new definitions of harassment still lead to requirements for
scientists to apply for permits for their research activities involving
marine mammals. This is a burdensome process in terms of time required
for preparation of applications and response to questions, but it is a
necessary process for establishing standards for impacts of research on
the animals. Questions about the over-regulating nature of the process
are raised when researchers observe members of the general public
engaging without legal consequences in the very activities for which
the researchers had to apply for a permit, or when the process
interferes with the timely implementation of research of importance to
marine mammal conservation. The latter case is often related to
research situations requiring NEPA and/or ESA compliance, rather than
simply MMPA considerations. Fortunately, most of my research is with
animals for which the ESA does not apply and involves activities that
have not required the preparation of an Environmental Assessment or
Environmental Impact Statement under NEPA. In the course of developing
more than ten permit applications since 1984, implementation of my
research has never been held up due to delays from the permitting
process.
There remain many other human-induced threats to marine mammals for
which practical regulatory solutions are not immediately evident. Noise
in the marine environment can interfere with marine mammal
communication or feeding, but the risks in terms of costs to the
animals have not been fully investigated, and practical means of
controlling the widespread noise produced by vessels have not been
identified. Vessel traffic can lead to disturbance responses, and in
some cases serious injuries from collisions. For example, about 4% of
the bottlenose dolphins in Sarasota Bay bear scars from collisions with
vessels, all of which have been acquired during periods of heavy
holiday boat traffic and boat races that attract thousands of spectator
boats. Under normal circumstances, these dolphins have powerboats
passing within 100 yards of them once every six minutes, leading to
significant changes in dive patterns and acoustic communication. This
disturbance occurs during daylight hours every day throughout the lives
of the animals. It has not been possible to evaluate the cumulative
effects of these repeated disturbance responses.
Recreational fishing involving rods, reels, and monofilament line
is another widespread activity, also with serious consequences for
marine mammals. In Sarasota Bay, nearly 5% of the 125 stranding cases
for which cause of death could be determined with confidence by the
Mote Marine Laboratory Stranding Investigations Program involved
recreational fishing gear. One young female dolphin was found swimming
slowly in Sarasota Bay with 1,600 feet of heavy fishing line trailing
from and cutting through her flukes. If not for rescue actions such as
those by our research team removing this line, the toll from this kind
of recreational fishing would be higher.
In the new century, we have the opportunity to adjust our
management approach to respond to different and emerging suites of
threats to marine mammals. Fishery impacts have not been eliminated,
but effective means of mitigating many of the problems have been
developed during the first 30 years of the MMPA. In much the same way
we should begin to look for solutions to reduce the potential impacts
of some of the emerging, widespread, and equally dangerous, pervasive
threats to marine mammals. Identifying technological or regulatory
solutions to some of the emerging problems from environmental
contaminants, noise, vessel disturbance, oil and gas exploration and
development, military activities, habitat loss, recreational fishing,
pathogen pollution, emerging diseases, and other issues may appear
highly challenging now, but that does not mean that these threats can
be ignored. Cumulatively, these threats have the potential to have
significant effects on stocks. An important and feasible first step
would be to educate stakeholders and members of the public to be aware
of their potential impacts on the animals, and to make appropriate
changes to their behavior and use of the habitats that form the
animals' homes. This approach has been exemplified by the NOAA
Fisheries ``Protect Wild Dolphins'' campaign. In addition, every effort
should be made to obtain the requisite information to evaluate risks
such that they may be considered in stock assessments along with other
forms of ``take'' for determination of the status of specific stocks.
Conclusion
The Marine Mammal Protection Act remains a model around the world
for marine mammal conservation. The process of this reauthorization
exemplifies the flexibility of this Act to adjust to changing
conditions. The shift over the last 10 years to consider more of the
non-fishery-related threats to marine mammals is a very welcome and
important improvement.
This concludes my testimony. Thank you very much for the
opportunity to appear before you today. I would be pleased to respond
to your questions.
______
Mr. Gilchrest. Thank you very much, Dr. Wells. You have
broadened our perspective on another dimension of the problem.
Mr. Zuanich. Did I pronounce that right?
Mr. Zuanich. Perfect.
Mr. Gilchrest. Thank you.
STATEMENT OF ROBERT ZUANICH, BOARD MEMBER,
UNITED FISHERMEN OF ALASKA
Mr. Zuanich. Mr. Chairman, I want to take the opportunity
to thank you and your Committee for allowing us to provide our
views on reauthorization of the Marine Mammal Protection Act.
There is little dispute that the act is necessary to
protect marine mammals from adverse human activities. However,
we believe there are a few very real problems that your
Committee must address in considering reauthorization
legislation.
First and foremost, the act has the practical effect of
elevating marine mammals above all others in ocean management
by imposing upon commercial fishermen a requirement to reduce
their mortality and injury of marine mammals to a level
approaching a zero mortality. This zero mortality rate goal, or
ZMRG, has the practical effect of treating all marine mammals
as if they were listed as endangered under the Endangered
Species Act, even if a population is healthy and growing at a
significant rate.
We believe, as a biological management tool, the ZMRG
distorts the ocean ecosystem by giving marine mammals primacy
in the ocean without fully considering the needs of other
species. And I would like to give you a few examples.
There is ample evidence that sea lions and harbor seals,
whose populations are now at or exceed historic levels, are
preying heavily on endangered Columbia River salmon. In
southeast Alaska and in California, sea otters are changing the
ecosystem by eating large numbers of sea urchins and abalone.
Again in Alaska, a recent University of Alaska study concludes
that expanding sea otter populations may soon decimate Glacier
Bay crab stocks. And similarly, Canada has come out and
concluded that mammals are hindering the recovery of depressed
cod stocks.
Simply put, the we believe the ZMRG is an unrealistic
management tool and must be redefined or eliminated.
We believe this ZMRG should be replaced by a standard
applied by many other environmental protection statutes. That
is, that the regulated industry--in this case, commercial
fishing--should be required to use the best practicable and
economically feasible technology to avoid marine mammals. After
all, this was the standard when the act was first enacted, to
apply to the Eastern tropical tuna fishery. And it should again
be the standard, particularly with regard to Alaska's
commercial fisheries.
If, however, we elect to--or you elect to retain the ZMRG,
then all ocean users who interact with marine mammals should be
subject to the same standard. Testimony presented last week at
the MMPA hearing before the Senate Commerce Committee stated
that sport fishing and recreational and commercial vessel
activity can significantly impact marine mammals. If ZMRG is
the right policy, then why is it only applicable to small
fishermen?
Finally, we also note that the act requires commercial
fishermen to place observers upon their vessels when the
Fisheries Service so demands. Many fishing vessels are small
and cannot accommodate an observer, which can affect their
efficiency and their ability to safely operate. For small
fishing vessels, all observers should be staged on Fisheries
Service vessels. If this is not possible, then we would ask
that the Fisheries Service should be required to indemnify the
vessel owner for many third-party claims associated with the
observer requirement.
Again, I want to thank the Committee for the opportunity to
present the views of the United Fishermen of Alaska on this
very important legislation.
[The prepared statement of Mr. Zuanich follows:]
Statement of Robert P. Zuanich, on behalf of the
United Fishermen of Alaska
As you may know, the Alaskan commercial fishing industry has been
gravely impacted by lawsuits brought against the National Marine
Fisheries Service (``NMFS'') for alleged violations of the Marine
Mammal Protection Act (``MMPA'') and the Endangered Species Act. More
such suits loom threateningly on the horizon.
A central problem that your Subcommittee needs to address in
considering legislation reauthorizing the MMPA is that the MMPA creates
serious ocean management issues by elevating one species above all
others in oceans management. We support amendments to the MMPA that
will allow the Act to achieve its important objectives while also
preventing distortions in the ocean ecosystem--- distortions caused by
the fact that the MMPA calls for the oceans to be managed for the
benefit of only one species.
Because of the inherent problems in the management philosophy
embedded in the MMPA, the following issues must be addressed in any
MMPA reauthorization.
1) Zero Mortality Rate Goal (``ZMRG''). The Act requires that
commercial fishermen reduce the incidental mortality and serious injury
of marine mammals to an insignificant level approaching a zero
mortality and serious injury rate. No one advocates unnecessary
incidental injuries and mortalities and every Alaskan commercial
fisherman seeks to prevent that. The problem is not with that goal. The
problem is with the MMPA's philosophy that the ocean is to be managed
by placing marine mammals above all other species and that anything
above a zero mortality and injury rate is unacceptable. Indeed, a zero
mortality policy is the equivalent of treating all marine mammals as if
they have been listed as endangered under the Endangered Species Act,
even if the population is healthy and growing at a significant rate.
As a biological management tool, ZMRG creates distortions in the
ecosystem. In a terrestrial context, the Forest Service, for many
years, managed the National Forest System by identifying the primary
species it wished to benefit in each national forest and then managing
the forest for the benefit of those species. That system of giving
management priority to a limited number of species is similar to the
MMPA which gives marine mammals primacy in the ocean. In contrast to
the MMPA, the Forest Service generally abandoned this single species
policy because it adversely affected biodiversity by attempting to
manage the environment for the benefit of a few species without full
consideration of the needs of other species. Similarly, managing the
ocean environment for the benefit of one species places other species
at a disadvantage and threatens biodiversity. Endangered salmon, for
example, a food source for certain marine mammals, have been harmed by
this policy.
A technical report titled ``Effects of Marine Mammals on Columbia
River Salmon Listed Under the Endangered Species Act,'' prepared under
contract for the Department of Energy, concluded that sea lions and
harbor seals, whose populations are now at or exceed historic levels
because of the MMPA, are ``preying heavily'' on endangered Columbia and
Snake River salmon. The report, issued before the last MMPA
reauthorization, found that ``pinnipeds are taking a disproportionate
number'' of Columbia and Snake River salmon listed under the Endangered
Species Act and concluded: ``Threatened and endangered salmon must have
representation in the [MMPA] reauthorization process.'' They did not,
and the problem grows worse. In testimony presented to the House
Resources Committee in October, 2001, NMFS asserted there are ``serious
concerns about . . . the impacts of pinnipeds on salmon listed under
the Endangered Species Act.'' NMFS also testified that marine mammals
may be impairing the recovery of certain endangered and threatened
salmon. The policy question is whether the MMPA's requirements for
marine mammal protection should have priority over all other management
decisions, including the protection and recovery of endangered species.
In Alaska, scientists for the U.S. Geological Survey studying the
Glacier Bay ecosystem have stated that the expanding sea otter
population will have a ``very large impact on the crab population. We
would expect the number of crabs to decline dramatically.'' A
University of Alaska scientist studying sea otters concluded that in
Glacier Bay ``it's just a matter of time before the otters put
fishermen out of business. . . .'' That scientist also found that sea
otters are changing the ecosystem in other ways by eating large numbers
of sea urchins, which eat macro algae, which means a significant
increase in the amount and the density of kelp.
In California, sea otters eat abalone. But they eat such large
quantities of mature abalone that the ecosystem is left with
significantly reduced quantities and the remaining abalone are small
juveniles.
The Canadian Department of Fisheries and Oceans has concluded that
growing marine mammal populations in that country are hindering the
recovery of depressed cod stocks. Indeed, some experts have commented
that marine mammals consume between three and six times the entire
worldwide commercial fisheries catch.
Our point is that there are consequences for other ocean species
that flow from the MMPA's decision to manage the oceans by giving
marine mammals the first and highest priority.
We want to emphasize that we do not support or condone actions
which lead to marine mammal mortality and injury, but ZMRG is an
unscientific and an unrealistic management tool. It should be replaced
by a concept applied in many other environmental protection statutes---
that the regulated industry should use the best practicable and
economically feasible technology to avoid and minimize adverse
environmental impacts. Indeed, this was the policy of Congress when
ZMRG was first enacted and applied to the eastern tropical tuna
fishery. See H. Rept. 92-707 (1971) at 24 and S. Rept. 92-863 (1972) at
6. See also H. Rept. 97-228 (1981) at 17. But Congress has allowed NMFS
to move away from that standard. Today NMFS defines ZMRG in a way that
is intended to return marine mammal populations to their pristine
levels.
The ZMRG methodology starts with the minimum marine mammal
population estimate. This number is multiplied by 50% of the expected
annual net reproduction rate. The resulting number is half of what NMFS
estimates as the annual net reproduction of the minimum population.
That number is then reduced by multiplying it by a recovery factor of
0.1 for endangered species, 0.5 for threatened or status uncertain
species and 1.0 for others. NMFS then reduces the resulting number by
90%. Any fishery taking fewer than this final number is at ZMRG. This
ZMRG formula is designed to return marine mammal populations to the
levels that would exist in a pristine environment. It places marine
mammal populations above all others.
2) End Discrimination. All users of ocean resources should be
subject to the same standards. If ZMRG is the proper ocean management
policy, then every user of ocean resources who interacts with marine
mammals should be held to that standard. However, as now written, ZMRG
applies only to commercial fishermen. Yet, recreational boating
activities, large and concentrated recreational fisheries, and merchant
shipping can each have a significant impact on marine mammals.
Recreational boating activities in Florida, for example, have a major
impact on manatees, but no ZMRG is applied to this activity. Testimony
presented at last week's MMPA hearing conducted by the Senate Commerce
Committee showed that merchant ships collide with marine mammals, often
killing them. In fact, the testimony stated that so many endangered
right whales are killed by vessel collisions that population models
predict this additional mortality may drive the species to extinction.
If ZMRG is the correct policy, why isn't it applicable to everyone?
3) Fisheries Categorization. To achieve ZMRG, the MMPA requires
NMFS to categorize commercial fisheries into three groups. Category i
fisheries are those with a frequent incidental mortality and serious
injury of marine mammals. Fisheries having only an ``occasional''
incidental mortality or serious injury of marine mammals are considered
category ii fisheries. For any fishery placed into category i or ii,
NMFS must develop a formal marine mammal take reduction plan whose
objective is to achieve ZMRG. Only a category iii fishery, one which
has a ``remote likelihood or no known incidental mortality or serious
injury'' of marine mammals, escapes the requirement for a take
reduction plan to achieve ZMRG.
These statutorily created categories again underscore the fact that
the MMPA establishes a goal of managing the ocean for marine mammals
above all other creatures. The categories do not reflect any realistic
set of management priorities based on the true impact of an action on
marine mammals. Instead, only those fisheries with a remote or no
interaction with marine mammals escape the ZMRG regulatory process. In
other words, if you have already achieved ZMRG then no further
regulation is applied. And, once again, the take reduction plan process
only applies to commercial fishermen--- it does not apply to other
ocean users.
Further exacerbating this problem is the fact that the process by
which NMFS assigns commercial fisheries to various categories is
unscientific and arbitrary. For example, the southeast Alaska salmon
purse seine fishery is listed as a category ii fishery based solely on
the fact that several years ago one humpback whale swam through a seine
net ripping apart the net. Similarly, the Cook Inlet set gillnet salmon
fishery was classified by NMFS as a category ii fishery despite
vigorous protest from the fishermen about the absence of any sighting
of marine mammal interactions. When NMFS actually gathered incidental
take information based on NMFS observer data, NMFS discovered that the
fishermen were correct and the fishery belonged in category iii.
Categorization of fisheries must be based on sound science, not
isolated examples and conjecture.
4) Potential Biological Removal (``PBR''). A first blush, the
concept of PBR appears to provide a management concept similar to that
contained in the Magnuson-Stevens Fishery Conservation and Management
Act where managers determine the allowable biological catch. However,
under the Magnuson-Stevens Act, management decisions are based on
preventing removals from exceeding a biologically safe amount. In stark
contrast, the PBR concept in the MMPA seeks to continue building all
marine mammal populations, even healthy stocks, to their optimum
sustainable population (``OSP''). NMFS defines OSP as a range between
the largest possible population and the maximum possible net
reproduction rate. The MMPA's concept of PBR as a management tool is,
once again, premised on giving marine mammals the primary place in the
ecosystem. As noted above, this distorts ocean management to the
disadvantage of other species and to the disadvantage of persons whose
livelihood depends on a balanced ecosystem.
Compounding these problems is the fact that, far too often, PBR
determinations and decisions are made based on weak and limited data.
This lack of data serves only to complicate ocean management issues
when all other species are secondary and all doubts are resolved in
favor of the primary species.
5) Liability In Any Observer Program. The MMPA requires commercial
fishermen to accept an observer when NMFS so demands. The problem is
that many vessels are too small to accommodate another person. Vessel
captains are often required to reduce crew size, which affects the
ability to operate the boat safely, or to add another person. The
observer, whose presence on board a small vessel inhibits crew
movement, thereby impacting safety. For the small vessel fleets, all
observers should be staged in a NMFS vessel. If that is not possible,
the program should indemnify the vessel owner from any third-party
claims associated with the requirement to have an observer onboard.
We look forward to working with the Committee to amend the MMPA so
that it is a balanced and responsible law that relies on sound science,
requires the use of the best practicable commercially and economically
feasible technology in mitigating impacts to marine mammals, treats all
ocean users the same, and does not impose requirements which jeopardize
human safety.
______
Mr. Gilchrest. Thank you very much. We will try to get
through some of these questions before the vote.
Ms. Steuer, your approach to the problem of the right
whales in the Atlantic Ocean, where you say fishermen cause
half of the mortality, and there is a regulatory process that
is in effect right now; ship strikes cause the other 50 percent
of the mortality, and there is no regulatory regime to deal
with that issues. There has been--it is my understanding, and
maybe it would have been better if NMFS--I see some NMFS people
peppered out through the audience there, so maybe they can
answer this question.
The IMO, with the help of our National Marine Fisheries
Service, it was my understanding, developed a process for
international shipping, when they approach the U.S. coastline,
to work with our Coast Guard and NOAA--I guess it is a
voluntary thing--to avoid right whales, or to report right
whales. But there was a system put into place. And I understand
it is a voluntary system. If you are aware of that system with
the IMO, is there some--is there something we can do with that
structure, do more with that structure to help with the right
whale situation? And there was--or there is research going on
with Dr. Tyack with those fish-finders being used on ships to
maybe locate right whales or other marine mammals as the ships
go through.
So a quick comment on what IMO is doing, and is that
research by Dr. Tyack something that you think would be
worthwhile pursuing?
Ms. Steuer. On the research end, all of it is worthwhile
pursuing, because we don't know, frankly, why so many right
whales get hit by ships. We hate to say it, but maybe they are
just so dumb they can't avoid them.
The IMO system, as I understand it, is an information-
gathering system only. It does not obligate a vessel owner or a
captain to move his vessel--slow down, avoid, or do any of the
things that are necessary to protect right whales. What we
don't have at the moment is an approach that, like the TRT--
Mr. Gilchrest. I do think, though, that there is some
communication between--and I know it is a voluntary thing, but
I do think there is some communication between the ship
captain, the pilot, and the Coast Guard, where the Coast Guard
can actually contact that ship that there's right whales in the
vicinity.
Ms. Steuer. In the area. Right. But there is no process
that forces the shipping companies to come to the table, as
with fishermen, and say, OK, here is what we can and can't do,
here is what we should and shouldn't do to reduce ship strikes.
And that has to happen, and it has to happen soon. Because
every single loss of a right whale is a detriment to the
species, that is so much on the edge.
So I think NMFS needs to--and we appreciate that it is a
tough one with the IMO involved, but Canada just did it. They
moved traffic, shipping traffic lanes in and out of the Bay of
Fundy through an IMO process in an attempt to reduce right
whale strikes. And my view of that is if Canada can do it, we
can sure do it.
Mr. Gilchrest. So Canada changed the route upon which ships
travel to that port?
Ms. Steuer. Yes. They moved their shipping lanes, and I
believe there are also speed reductions involved.
And so I know it is a complicated process, but I think that
sets a model for us that can be done. And one of the
researchers involved is actually working in Massachusetts. So
we have the model set up and we should be looking at it.
Mr. Gilchrest. Well, thank you very much.
Mr. Johnson, how was your trip from Alaska?
Mr. Johnson. I was here last week, and I went back home. It
is a 2-day trip coming here, so it is a long trip.
Mr. Gilchrest. Are you going to stay a couple of days now?
Mr. Johnson. Well, I am here. Every time I come back, I try
to make as many visits to as many different offices as possible
because it is so long. You know, we complain in Alaska--I deal
a lot with polar bears in Russia, and they claim the same
problems that we have.
Mr. Gilchrest. What, going to Moscow?
Mr. Johnson. They say it is both a good thing and a bad
thing to be so far away from your capital. [Laughter.]
Mr. Gilchrest. We hope you are finding it a good thing
right now.
Could I ask about--you made a comment about sale of gall
bladders and the ban on airplanes, and the permits for seals
with Fish and Wildlife as opposed to just National Marine
Fisheries Service. Those are three very specific
recommendations. Do you see us-- And we would like to help with
that, and I am just wondering if--and, you know, we will talk
to staff and counsel and all those other things. Do you see
those three recommendations being specific in the language of
this reauthorization in the report language? How would we
actually, from your perspective, implement a ban on gall
bladders, no airplanes can do any hunting? Is it in this--is
the Senate dealing with this issue as well?
Mr. Johnson. Yes, the Senate is dealing with the ban on
airplanes for polar bear hunting. That is in the treaty that we
just negotiated with Russia. And the ban on the sale of gall
bladders has been in, I think, in the past--in the language. Or
else it has been in regulations.
As far as the management of species, that was in the
original 1972 act, where it put seals under management of
Department of Commerce. And we have a good relationship with
NMFS. I am not, you know, saying that we don't like NMFS. but
the fact of the matter is they have told us that, you know,
they are constantly dealing with crisis situations and
lawsuits, and because of that co-management with Alaska Natives
is not a priority. That is their words almost--
Mr. Gilchrest. I think that is something that we can
probably change through the regulatory process, or in this
bill, the relationship between the permits for what you would
like to do with the seals, between NMFS and Fish and Wildlife,
I think we can deal with that in this legislation. The treaty,
I guess, with the gall bladders, with Russia is something that
we will pursue here and continue to look at. I don't know if
that is something that we could actually put in this
legislation. But I appreciate you raising it to us here this
morning. And I also think we can work on the airplanes, no
hunting from airplanes.
We may have a second round if we have enough time, but my
time has expired, so I am going to yield now to Mr. Pallone.
Mr. Pallone. Thank you, Mr. Chairman. I wanted to ask Ms.
Steuer, because I know she was a former staffer to the Merchant
Marine and Fisheries Committee--I wish we still had the
Committee, but such is life.
Mr. Gilchrest. We are working on it.
Mr. Pallone. Are we working? Oh, that is right, you are
working on it. Oh, well, I hope you succeed. And I will help
you, if I can--I don't know if what I say matters.
Mr. Gilchrest. Maybe Karen can come back as a Republican
staffer this time. [Laughter.]
Ms. Steuer. For you, Mr. Gilchrest, anything.
Mr. Pallone. Anyway, Karen, you were an active participant
when the new definition of harassment was created, because I
know you mentioned it before. Would you comment on the original
intent of providing such a specific definition for this one
aspect of take?
Ms. Steuer. What happened in 1994, Mr. Pallone, is that we
were actually approached by the scientific community with the
very same complaints that we are hearing this time around.
Prior to 1994, there was no definition. And so we created the
two-tiered definition with the intention of having a tier--that
is, Level B harassment--that would apply to incidental takes,
like those of the scientific community, which were clearly to
be of negligible impact. And we were relying on NMFS to set up
a process to make their lives easy.
Unfortunately, that didn't happen. And so here we are
again. And it is one of the reasons why I, at least, would--I
don't think that I could give any stronger advice to the
Committee on the definition this time than to say that no
matter what language you use, you define every single term in
the statute; or you direct NMFS to do a rulemaking within a
specified period of time to define the terms. Because that is
where we were negligent in 1994, and that is what needs to
happen now.
And when I testified a few months ago on the DOD bill, I
believe, I said the same thing; and that is that it is not--
that the language of the statute alone isn't going to resolve
any of the problems we have heard today unless we have a clear
process that resolves all the process problems that we have
seen, that resolves all the conflicts on ambiguous terms, and
that sets up the proper standards for scientists, fishermen, or
anybody else. And so you have to have that in combination with
whatever language you put in Level A and Level B harassment.
Mr. Pallone. Well, this is related or, you know, I wanted
to ask you specifically, though, the language in Section 14,
which provides a general authorization for incidental take at
the discretion of the Secretary, you know, would that produce
the desired outcome, or do you feel it opens an unrestricted
loophole for a variety of other activities in the ocean that
may also cause the incidental taking of a marine mammal, such
as offshore oil and gas exploration, for example?
Ms. Steuer. I think, as it is currently worded, the problem
is that it is a big loophole. And I am sure that is not the
intention in the bill. And it seems to me that some of the
testimony that we heard on the first panel might be very useful
in that regard, in terms of the agencies setting up, perhaps,
the equivalent of a programmatic review process in which
certain activities can be determined to be of de minimis
impact. Others can be moderate impact, or however they want to
go through it. But to set up a general authorization that
doesn't more clearly define its intent in terms of reference I
think would be a mistake.
Mr. Pallone. Let me ask about this new World Wildlife Fund
study that was released in June. This is again for you, Karen.
Released in June, conducted by both American and Scottish
biologists, suggests that accidental capture of bycatch by the
fishing industry may be the biggest immediate threat to the
survival of some marine mammals, especially large whales. And
it analyzed bycatch mortality affecting 125 marine mammal
populations over 10 years. It estimates that 1,000 whales,
dolphins, and porpoises drown every day, annually approximately
308,000 marine mammals die unintentionally.
Are there any conclusions that can be drawn about the
effectiveness of Section 118, take reduction team process,
because of this study? Maybe others might want to answer this.
I know Mr. Hayes talked about the fishing gear, whether
specific types of fishing gear should be permanently retired
due to their associated level of bycatch.
Ms. Steuer. Yes. I mean, there is no doubt that incidental
bycatch in fishing gear is the largest single threat globally,
particularly to what we call small cetaceans, small whales and
dolphins. Absolutely no doubt about it. And at a paper
presented to the Scientific Committee of the International
Whaling Commission this year, the global estimate number is now
up to more than 300,000 whales and dolphins a year, 600,000
pinnipeds a year. The numbers are huge. And certainly type of
gear is the bottom line. As Mr. Hayes was saying, it is not
about the fishermen, it is about the gear they use.
And in that regard, Section 118 has been extremely helpful.
Because what Section 118 allows the agencies to do is collect
data on which gears and how many and when and how and on what
mitigation measures work. And in fact, that data was used in
the International Whaling Commission discussions this year in
terms of how do we now get that kind of data out to the rest of
the world so that they can follow the kinds of practices that
we are trying to set up with Section 118.
Mr. Pallone. Thank you. I don't know if Mr. Hayes wants to
say anything. You kind of already addressed it, I guess.
Mr. Hayes. I think I addressed it. It is a huge problem.
Mr. Pallone. OK. Thank you, Mr. Chairman.
Mr. Gilchrest. Thank you, Mr. Pallone.
This is--we are working on a series of definition changes
and in our bill we have, if I could use--I guess it is one-i,
two-i, three-i, or A, B, and C. But what we have attempted to
do is to focus on the problem areas of the difference between a
minor change in the behavior which is not significant, to a
significant change that we really need to focus in on with our
limited resources, to help the scientists improve their
research without dealing with the whole disruptive, fragmented,
underfunded regulatory process, and to find a way to get at
some of the harassment of marine mammals that we don't have the
ability to do now. And also what you said, Ms. Steuer, we can't
do it all with the definition of harassment; there has to be
some really comprehensive, competent regulatory regime. And
whether we come up with a rulemaking process, whether we define
those very specifically now, we want to do that.
And we are hearing all this, and we are going to do our
best to accomplish this task, including helping the fishermen
catch their fish without making a priority within the creation
of God's Earth that a porpoise is better than a salmon--or any
of that. Balance all of this.
I guess the question I have, though, here is specific to
Level 3, which are trying to create to get at the--where there
is feeding, swimming problems, where you want to swim with the
dolphins, you want to feed the dolphins, you want to drive your
jet ski around the dolphin. So it is our understanding right
now that Level C harassment, little three-i, helps get at that
particular problem, though there is some feeling that it
doesn't, that it is not a good provision to put into the
statute.
So I guess I would ask does the present language, without
this reauthorization, give the enforcement agencies the ability
to stop that type of harassment? Is it presently--does it
presently exist, or do we need to change it? And if Level C
that we have in there is not adequate, or doesn't help that,
what in fact should we do?
And Dr. Wells, in your scientific research--and you
mentioned--I think you may have been the one that mentioned
feeding and swimming--do you see the present language in MMPA
as OK to enforce that? Apparently you didn't. Do you see our
language as directed toward those activities more helpful?
Dr. Wells. Thank you. My background certainly is not in the
legal profession, so I am not sure I am going to have a lot of
valid input on this, but it has been my experience to date with
my own research situation in Florida in dealing with NOAA
Fisheries personnel that the current definition doesn't work.
It is not a strong enough definition to get the legal counsel
and law enforcement wings of NOAA to be able to act on a number
of these situations that you describe.
In talking with the same NOAA Fisheries staff about the
proposed definition, it seems like something that they would
feel comfortable would allow them to move forward with
prosecutions much more effectively.
Mr. Gilchrest. Ms. Steuer?
Ms. Steuer. It is not clear to me why language that says
``any act,'' eliminating ``of torment or annoyance,'' doesn't
allow NOAA Fisheries to enforce any act of harassment.
The concerns that we have about ``directed toward'' are
that it is unclarified. I mean, as I read it, and we mentioned
this before, at the moment, if you are directing an activity
toward marine mammals, that includes scientific research. So
you now fall under that standard, unless something in the
statute or in regulation is going to clarify that you don't.
Jet skis doing recreational running around marine mammals
within an activity that is not directed toward them
specifically, it doesn't seem to me that this would necessarily
cover that.
And if what the Agency wants to do is regulate dolphin
feeding, dolphin swimming, and jet skis, then it seems to me
that we ought to have the nerve to put into the statute ``an
act''--we would say, ``dolphin feeding, dolphin swimming, and
jet ski activity around''--
Mr. Gilchrest. Is a prohibited activity.
Ms. Steuer. Is prohibited activity or shall be regulated
differently. If that is how clear we need to be, then let's be
that clear.
Mr. Gilchrest. One of the scientists, I am not sure if it
was Dr. Tyack or--either here or at some other hearing, made a
comment that if they tried to get a permit to ride around
dolphins in a jet ski to see if they were being harassed, it
would be difficult to get that permit. I guess. Although Dr.
Wells said he didn't have any trouble getting permits.
Dr. Wells. And actually, some of our work did involve
looking at controlled approaches to dolphins to understand
their responses.
Mr. Gilchrest. I wonder if the--well, we will have to ask
some of the NMFS people later, who aren't testifying right
now--is it--in the process of getting a permit for scientific
research, whether it is Florida, California, Massachusetts,
Alaska, or wherever it happens to be, is that--because Dr.
Wells says the permitting process is fundamentally sound right
now--you said it was OK--is that the problem of individuals
that you work with in those regions, or do those individuals
help in that process, is it Washington, is it somebody that
files a lawsuit? You know, where is that stream, because we
have heard some specific examples of specific scientists that
had a very difficult time getting permits.
Dr. Wells. I believe one of the differences is that most of
my work is with bottlenose dolphins. Not being endangered
species exempts them from some of the NEPA and ESA
considerations that these other scientists have had to face. I
think my experience is consistent with Dr. Tyack's in terms of
dealing strictly with MMPA authorizations or permits, in that
that process seems to be working well. But when you have the
additional complications of NEPA and ESA considerations, that
is when it starts to get difficult.
Mr. Gilchrest. So you see some streamlining with that
process?
Dr. Wells. That presumably would help out.
Mr. Gilchrest. Mr. Pallone, any further questions?
Mr. Pallone. I just wanted to ask Mr. Johnson about, you
know, when you talked about the co-management, and I know that
the bill has some changes in cooperative agreements. But in
terms of Native Alaskans having the capabilities to support and
train enforcement operations for effective co-management, would
you just comment on that? I mean, is there sufficient
capabilities, or is there a greater need for other--you know,
if you just mention to us about their ability to do the
enforcement pursuant to these cooperative agreements.
Mr. Johnson. Yes, what we want is the ability to enforce
regulations that we might develop for harvest limitation. For
example, the villages of Gambell and Savunga on St. Lawrence
Island have an unenforceable ordinance that they have developed
limiting the number of walrus that can be taken. Presently that
is not enforceable. The reason that we want the enforcement
language in the bill is that legally an Alaska Native tribe can
only enforce on its own members. So if a member from another
tribe comes and hunts in that area, he doesn't have to abide by
the same regulations that a tribal member can. The language in
the bill that we would like to see in there, it allows anybody,
any Alaska Native that is hunting in an area that has
regulations, it forces them to live by the same regulations. We
do have the capability, in most case, because we do have
village peace officers in most villages in Alaska.
Mr. Pallone. OK thank you. That is all I have, Mr.
Chairman.
Mr. Gilchrest. Thank you very much, Mr. Pallone.
Prior to adjourning, I ask unanimous consent that the
statement of Monica Riedel be submitted for the record. Without
objection, so ordered. I have been meaning to say that for 2
hours.
[The prepared statement of Monica Riedel follows:]
Statement of Monica Riedel, Executive Director and CEO,
Alaska Native Harbor Seal Commission
Thank you for the opportunity to present this testimony. My name is
Monica Riedel and I am testifying in my capacity as the Executive
Director and CEO of the Alaska Native Harbor Seal Commission (ANHSC). I
am also a subsistence user of marine mammals, Native artist, and tribal
member of the Native Village of Eyak located in Prince William Sound,
Alaska.
The ANHSC spans a geographic area almost equal to the width of the
United States. We encompass approximately eighty remote villages most
of which are accessible only by air or water.
The commission was organized specifically to develop and implement
Co-management of harbor seals and to address issues related to the
Native subsistence harvest. Co-management is viewed as an effective
means of addressing the decline of harbor seals in the Gulf of Alaska
while providing for a continuation of traditional subsistence uses.
Importance of harbor seals to Alaska Natives
Alaska Natives have been harvesting marine mammals for centuries.
Current Harvest data shows that out of an estimated population of
180,000 harbor seals in Alaska, approximately 2,500 are taken for
subsistence. (Information from NMML and the Alaska Department of Fish &
Game, Subsistence Division)
The nutritional value derived from the seal far exceeds any other
foods introduced to Alaskan villages. The oil is unsaturated, ``and is
an excellent source of the long-chain omega-3 fatty acids that help
prevent coronary heart disease'' (Professor Fereidoon Shahidi of
Memorial University, Nammco International Conference and Exhibition
Nov. 1997). Furthermore, recent studies show that seal oil may contain
antibiotic properties. Just 3 oz of seal meat provides 95% of a
person's daily requirement of iron.(Alaska Native Health Board)
Over the past 30 years, congress has consistently recognized the
use of marine mammals by Alaska Natives as an integral part of our way
of life. Marine mammals, including the harbor seal, are a key source of
food and clothing for Alaska Natives living throughout coastal Alaska.
Alaska Natives make a wide variety of handicrafts and clothing from the
marine mammals they harvest. They barter these items through
traditional trading networks throughout Alaska. The sale of handicrafts
made from marine mammal by-products is a crucial source of income to
many who live in remote Native villages. Marine mammals also play a
prominent role in Native stories, art, traditions, and cultural and
spiritual activities.
Background information on ANHSC Programs:
Community-Based Harbor Seal Management and Biological Sampling
With support from the Exxon Valdez Oil Spill (EVOS) Trustee
Council, the ANHSC in collaboration with the Alaska Department of Fish
& Game, Subsistence Division(ADF&G) has been conducting a biosampling
program to collect tissue samples from subsistence-harvested seals. The
overall purpose of the program is to combine Native traditional
knowledge with western science to address the restoration and recovery
of the seal population impacted by the 1989-oil spill. Over the past 5
years, the project has trained and certified over 100 hunters, and
subsistence users in rural Alaskan villages. The project has collected
over 500 sample sets for distribution to a wide range of researchers
and for the University of Alaska Tissue Archival Project.
Youth Area Watch
Through coordination with another EVOS funded program, an
additional 400 students have been exposed to the scientific methods of
collecting data. During youth spirit camps the hunters teach protocols
of hunting methods, as well as cultural relationships to the animal,
while an ADF&G veterinarian and ANHSC staff train the youth in the
scientific protocols of data collection. During the year, staff also
visits elementary and high schools to educate students on Natives and
marine mammal harvests.
Harbor Seal, Monitoring, Research and Management Program
With Congressional appropriations through the National Marine
Fisheries Service (NMFS) in the amount of $97,000 for each of the years
1997, 1998, and 1999, and 150K for the years 2000,2001,2002 and 2003,
the ANHSC has conducted a ``Harbor Seal Monitoring, Research and
Management'' program. This program, combined with the EVOS biosampling
project, has supported a full time executive director, and a contracted
biologist to monitor harbor seal research on a statewide and national
level. There are five main components to the program:
1. LAdmin support for ANHSC and Board of Directors
2. LCooperative Agreements
3. LHarvest Assessment Oversight
4. LExpansion of Biosampling
5. LANHSC Outreach and Education
Self-regulation and Co-management
The use of marine mammals for thousands of years has made Alaska
Natives wise stewards of marine mammal populations. We bring unique
knowledge and historical perspective to resource management. The
National Marine Fisheries Service (NMFS), the federal agency with
jurisdiction for the management of harbor seals, recognizes the
advantages of direct involvement of subsistence users in managing
harbor seals. Indigenous inhabitants and NMFS share the common goals of
conservation and maintenance of a sustainable subsistence harvest. For
that reason, the NMFS entered into a Marine Mammal Protection Act,
Section 119 Co-management Agreement with the ANHSC.
Through co-management, hunters and Native Tribal representatives
sit as equals within the policy-making bodies that make resource
management decisions. Co-management provides an effective means of
conservation without diminishing the ultimate authority or
responsibility of the Secretary of Commerce.
Development of ANHSC/NMFS Sec. 119 Agreement
Co-management discussions between the Harbor Seal Commission and
the National Marine Fisheries Service began in April 1995, shortly
after the formation of the commission, and NMFS's proposed listing of
the Gulf of Alaska harbor seal stock as ``strategic''.
In spite of the impediments of long distance communications between
NMFS headquarters in Washington D.C. and between our remote villages, a
Section 119 Co-management Agreement between the Alaska Native Harbor
Seal Commission and the National Marine Fisheries Service was finalized
and signed in April 1999.
Proactive management through Sec. 119 Agreements
It is envisioned that through the Co-management Committee structure
established in Article V and Article VII Section B and C in the
``Agreement Between The Alaska Native Harbor Seal Commission and The
National Marine Fisheries Service, the ANHSC and NMFS will consult on
issues relating to regulation and enforcement. Article VII Sec. C),
States: As concern about any Alaska harbor seal stock arises (i.e.,
prior to listing as strategic or depleted under the MMPA and/or as
threatened or endangered under the ESA) the Parties agree that the Co-
management Committee shall:
1. LConsult and recommend about a possible need to list;
2. LConsult and recommend about management strategies to avoid a
possible listing;
3. LAfter listing, consult and recommend about possible
regulations; and
4. LAfter listing, consult and recommend about possible
arrangements for ensuring compliance and enforcement.
Co-management Committee meetings are held on a regular basis.
Specifically, we are addressing harbor seal stock delineation. The
ANHSC has committed to conduct an independent scientific review of the
genetic data used by NMFS to propose new stock boundaries.
How Co-management Agreements have benefited Natives and marine mammals
Before the ANHSC was formed, hunters occasionally met with agencies
to exchange information about harbor seals. Now, the dialogue is much
broader. With formal and equal representation, scientific consultation,
and through the co-management committee, as developed in the NMFS/ANHSC
Sec. 119 Agreement, hunters and subsistence users contribute their vast
traditional knowledge to address research and conservation needs. The
ANHSC Board of Directors is made up of hunters and subsistence users.
They are directly involved in data analysis of the seal population,
harvest numbers, as well as data generated from the biosampling
program. ANHSC meetings are open to the public and the organization
distributes newsletters, brochures and biosampling training videos.
Room for improvement
As background, it should be noted that the ANHSC recognizes that
the most important data for managing any harvested population are
regular censuses and monitoring of the size and composition of the
harvests. The NMFS and the ADFG are well equipped for censusing harbor
seals and they have an on-going census program. The ANHSC are
responsible users and recognize the importance of harvest monitoring.
The ANHSC is in the best position to do so because harvests are spread
over a very wide area (from Ketchikan to the western Aleutian Islands)
and throughout the year, it is impractical to monitor the harvests from
agency offices. The ANHSC has representatives throughout the harbor
seal's range in Alaska, and those representatives are knowledgeable
about local hunting practices.
We need to continue to build capacity and find long-term
commitments to support conservation and local management plans. ANHSC
is hard at work collecting data on the harbor seals, participating in
federal, state and private research, monitoring the harvest and other
activities. Adequate support would enable the commission to assist its
villages in developing formal codes and ordinances, databases, and
generally support the work of the commission. With the recent increase
in funding, ANHSC has assumed more responsibility for monitoring the
harvest of harbor seals formally done by ADF&G Subsistence Division.
General comments on the MMPA and/or ways the MMPA could be
improved:
1. LSection 119 needs to be amended to include language contained
in the administration bill that we strongly support.
2. LFull funding for Section 119A for activities such as:
A. Ldeveloping infrastructure, management plans
B. Lcollecting and analyzing population data
C. Lharvest monitoring
D. Lcross-cultural training and other educational projects
E. Lbiosamapling and tissue archival projects
FACA exemption for Section 119 Agreements
Mr. Chairman and members of the Subcommittee, thank you for the
opportunity to testify on the 2003 amendments to the Marine Mammal
Protection Act. I will be glad to answer any questions you may have.
______
Mr. Gilchrest. I want to thank all of you for coming this
afternoon--well, it is this afternoon now. We will continue to
discuss these issues with you as we move through the process.
We are obviously not going to mark this up before the August
recess, but it will be done, in our hopes, sometime in the
September timeframe to reach the House floor for a vote. And we
are working with the Senate to hope that there is some
concurrent process there as well. So that in this session of
the 108th Congress we will, hopefully, reauthorize the Marine
Mammal Protection Act. And your contribution to this effort is
vital and greatly appreciated. Thank you very much.
The hearing is adjourned.
[Whereupon, at 12:28 p.m., the Subcommittee was adjourned.]
The following individuals responded to questions submitted
for the record. Their responses follow:
Cottingham, David, Executive Director, Marine
Mammal Commission
Jones, Marshall, Deputy Director, Fish and
Wildlife Service, U.S. Department of the Interior
ent, Dr. Rebecca, Deputy Assistant Administrator
for Fisheries, National Marine Fisheries Service, U.S.
Department of Commerce
Steuer, Karen, Senior Policy Advisor, National
Environmental Trust
Tyack, Dr. Peter, Senior Scientist and Walter A.
and Hope Noyes Smith Chair, Department of Biology, Woods Hole
Oceanographic Institution
Wells, Dr. Randall, Conservation Biologist,
Chicago Zoological Society, Mote Marine Laboratory
Worcester, Peter F., Ph.D., Research
Oceanographer, Scripps Institution of Oceanography, University
of California at San Diego
Response to questions submitted for the record by Marshall Jones,
Deputy Director, Fish and Wildlife Service, U.S. Department of the
Interior
Questions from Chairman Wayne Gilchrest
1. Question: The USFWS has been referred to as the agency that
supported the changes to level A harassment in the Administration's
bill. The level A harassment in the Administration's bill reads
``injures or has the significant potential to injure a marine
mammal....'' Can you explain why this specific language was chosen?
Answer: The changes to Level A harassment proposed by the
Administration's bill represent the combined efforts of several
agencies having responsibilities under the Marine Mammal Protection Act
(MMPA). The agencies crafted this language with the best interest of
the public, marine mammals, and our respective agency missions in mind.
The current definition of harassment, which uses the term
``potential,'' does not provide a clear enough threshold for what
activities may constitute harassment. As currently defined, Level A
harassment is any act of pursuit, torment, or annoyance, that has the
``potential to injure,'' and Level B harassment is any such act that
has the ``potential to disturb.'' The term ``potential'' is too broad
and would include any activity that could cause a negative response, no
matter how remote the possibility. It provides little guidance to those
who engage in activities that may have an effect on marine mammals for
determining when their activities may result in prohibited harassment
that is subject to regulation and, therefore, when it would be
advisable for them to seek authorization (or modify their activities).
Adding the term ``significant'' provides a modification that attempts
to identify the appropriate level of certainty that an activity would
result in harassment and could actually cause injury to the individual
or stock.
2. Question: What is the status of the Polar Bear Treaty
implementing legislation being developed by the Department?
Answer: The Polar Bear Treaty implementing legislation is still
under review by the Administration. The Senate recently recommended
ratification of the treaty (on July 31, 2003) by unanimous consent.
3. Question: The Department has asked for authorities under section
118 of the MMPA to collect information on fishery interactions with sea
otters on the west coast. The Department currently has authority to
collect information under P.L. 99-625, which required the Department to
establish fishing areas and translocate sea otters to a special
protection area. Has the agency determined whether or not the actions
it has taken under P.L. 99-625 have been a failure? Why doesn't the
Department collect the information it seeks under this Act?
Answer: There are no provisions within Public Law 99-625 that
specifically address collection of information on fisheries
interactions. This law authorizes the U.S. Fish and Wildlife Service
(Service) to develop a translocation plan for southern sea otters and
provides specific requirements for translocation and management of sea
otters. Although this legislation clearly identifies an interest in
minimizing conflicts between sea otters and fisheries, it seeks to
reduce these conflicts through movement of sea otters out of a
designated management zone. The Administration's bill would clarify an
ambiguity in the existing section 118 specific to California sea
otters, noting that the provision should not be read to limit
collection of information on southern sea otter/fisheries interactions.
This information is important because, in recent years, fisheries that
are thought to interact with sea otters have been subject to
increasingly stringent regulations imposed by the State of California.
With little or no information on fishery interactions with sea otters,
it is difficult to determine means to minimize such interactions or to
evaluate the effectiveness of any such measures that are adopted.
It is clear that the primary objectives of the translocation
program have not been met. Accordingly, the Service is currently
reevaluating the program, including the possibility of declaring that
it has been a failure. In April 2001, the Service released a scoping
report that contained comments solicited from the public in preparation
for developing a Supplemental Environmental Impact Statement that will
analyze the effects of alternatives to the current translocation plan.
4. Question: Has the Minerals Management Service, through the
research it conducts or supports, reached any findings that would be
considered surprising? For instance did a marine mammal act in a way
that was not expected when a seismic activity or research activity was
performed?
Answer: According to the Minerals Management Service (MMS), while
there are no final results yet available for discussion, there are
several important MMS-funded marine mammal-related studies underway,
including Sperm Whale Seismic Studies (SWSS) and studies under the
Sperm Whale Acoustic Monitoring Program (SWAMP).
The SWSS is an international collaborative effort, which includes
among its participants the National Science Foundation (NSF) and
industry representatives, comparing the ``normal behavior'' of sperm
whales to that observed when seismic vessels are operating in the study
areas. Controlled exposure experiments (CEE's) are planned to measure
sperm whale responses to a typical air-gun array. Research vessels and
remote sensing devices will also obtain ambient noise measurements and
physical oceanographic data to allow a detailed habitat
characterization; mapping of both physical oceanographic features and
ambient underwater noise levels will be correlated to sightings of
sperm whales and other observed cetaceans. In addition, methods to
profile sperm whale dives using passive acoustic monitoring will be
developed. For longer-term analysis of dive times and whale movement,
satellite tags were tested in Fiscal Year 2001 and are being deployed
through Fiscal Year 2004. Using these different study methods, whale
vocalizations, dive profiles, and surface movement will be
characterized and then compared to data when seismic boats are active
in the area or during CEE's.
This study is intended to immediately address information necessary
for informed Section 7 consultations and possible MMPA take
authorizations associated with seismic survey operations. The study
will also provide essential baseline information on sperm whale
behavior and response to noise needed to conduct more detailed studies.
The SWAMP study focus was on obtaining a detailed characterization
of Gulf of Mexico sperm whales in terms of sex and age distribution in
industry-active areas, genetic profiles, habitat use, and seasonal
movement patterns.
As noted above, the information collected during the MMS-funded
SWAMP and the ongoing SWSS is still preliminary and requires careful
analysis before any conclusions can be reached. Once the scientists
analyze the data, the work will be submitted for peer-review
publication and will be readily available to the public.
5. Question: In your testimony you stated MMS analyzes impacts,
designs mitigation and monitoring guidelines, and defines how actions
are to be carried out to minimize the potential for harassment or
injury to marine mammals. Is MMS doing this on its own or is it
coordinating with the NMFS when making these decisions?
Answer: MMS coordinates protected species issues with the Service
and the National Marine Fisheries Service (NOAA Fisheries) on a regular
basis through interagency reviews of our NEPA documents and ESA section
7 consultations. This ongoing coordination allows MMS to more
effectively analyze alternatives to proposed actions, assess potential
impacts of proposed actions, and to design mitigation and monitoring
alternatives. For example, in addition to ongoing MMS, NOAA Fisheries,
and industry collaborative research efforts, MMS has been working very
closely with NOAA Fisheries Headquarters, NOAA Fisheries Southeast
Region, and many representatives of the oil and gas industry for the
past year and a half on mitigation, monitoring, and reporting issues
related to seismic surveys and explosive removals of offshore
structures in the Gulf of Mexico. Through our collaborative efforts we
hope to have the most effective and reasonable mitigation and
monitoring approaches to conducting seismic surveys and removing
offshore structures with explosives while advancing the intent of the
MMPA and the ESA.
Question from Congressman Jim Saxton
1. Question: Why has the agency refused to include in recent
budgets money for the John H. Prescott Marine Mammal Rescue Assistance
Grant Program--since the law was passed over two years ago? And do you
have plans to include funds for a Prescott program in the 2005 FWS
budget? FWS's jurisdiction covers an endangered species (manatees) and
a threatened species (California sea otters). Certainly help with
rescue and rehabilitation--and financial support for research
benefiting these marine mammals--would be in the best interest of these
declining species?
Answer: The Service supports the authority created by the Marine
Mammal Rescue Assistance Act of 2000 to provide assistance to eligible
marine mammal stranding network participants. Stranding network
participants carry out activities--including rescue and rehabilitation
of stranded marine mammals and collection of data from living and dead
stranded marine mammals--that are important to the conservation and
management of marine mammal species under our jurisdiction. Much of the
work performed by these organizations cannot be done by the Service,
which makes their contributions even more important.
The Service has not requested funding for the Prescott Grants
Program due to numerous competing priorities. Nonetheless, we have been
actively involved in the process through our participation in the NOAA
Fisheries technical and merit review processes. The Service greatly
appreciates being given the authority to request appropriations to
provide assistance to stranding network participants.
Questions from Congressman Frank Pallone, Jr.
Definition of harassment
1. Question: Over the past year, Congress has been presented with
several different options to re-define the definition of harassment. A
new definition is being offered in H.R. 2693. Please compare the
definition proposed in H.R. 2693 and discuss whether it compares
positively or negatively to other proposed definitions.
Answer: In proposing the changes identified in the Administration's
bill, our intent was to provide a definition that would clarify for the
regulated public what activities may constitute a violation. The
existing definition, which limits harassment to ``any act of pursuit,
torment, or annoyance,'' is too restrictive and may allow some actions
that clearly harm marine mammals to avoid regulation. And, we felt that
the unmodified form of ``potential'' was too broad. The modified form
of ``significant potential'' provides greater predictability of what
activities truly cause Level A harassment.
The various definitions try to better focus the agencies' resources
on those activities that pose a greater risk to animals, and seek to
set a more workable conservation standard as well as clarify for the
regulated public what activities would constitute harassment. However,
we support the clarity of the definition contained in the
Administration's proposal.
For example, we believe that the use of the word ``probability'' as
a qualifier in H.R. 2693 could be read to create a greater-than-fifty
percent threshold. Such a numerical threshold would require a strict
quantitative assessment, which would be difficult to conduct when
considering biological behaviors, and that may be impossible to
enforce. In addition, we are concerned that a greater than-fifty-
percent threshold may create a standard that is too high to apply to
certain activities that may have negative impacts on marine mammals.
The term ``significant potential'' provides a clearer standard for the
regulated public, as well as enforcement personnel, and a more
appropriate standard that ensures all activities that could lead to
negative impacts on marine mammals would constitute harassment.
2. Question: How will the proposed change to the definition of
harassment affect scientific research and/or military readiness
activities? Are there specific activities that might fall outside this
definition?
Answer: The scientific research community and the military would be
subject to the new harassment definition as would any other citizen.
These groups would, appropriately, need to receive authorization before
conducting activities that could injure marine mammals or significantly
disrupt important biological functions. We would work with both of
these groups to provide appropriate authorizations as quickly as
possible. Although the only activities we would expect to fall outside
of the proposed definition of harassment are those that do not have a
biologically significant impact, we are unable to more definitely
identify such activities because we do not have a clear understanding
of how the term ``probability'' in H.R. 2693 would be interpreted.
3. Question: The definition for Level A (potential to injure)
harassment proposed in H.R. 2693 requires that an activity have ``the
probability to injure'' a marine mammal. It seems to me that this
change would require a higher burden of proof for a given activity's
likelihood of causing harm. Do you feel that this change would make the
definition of harassment less protective of marine mammals? Does the
word ``probability'' have a clear and commonly understood legal
definition? What is the distinction from ``potential?'' Would the
addition of a modifier that explains the relative probability of injury
(such as 20%, 50%, 90%) be helpful in clarifying the intent of the word
``probability?''
Answer: We believe the term ``probability'' implies that a
mathematical or statistical threshold should be employed or, at the
very least, would require evidence that a response is more likely to
occur than not to occur. The difficulty in using this term when
referring to animal behavior, i.e., harassed or not harassed, is trying
to make a numerical measurement of that animal's reaction that could be
compared to some baseline level. The same difficulty applies if a
modifier is added to the term. We are also concerned that this may
create a standard that would not apply to some activities that may
cause significant negative impacts to marine mammals.
The Service is unaware of the use of ``probability'' in any other
wildlife conservation law. The term ``potential'' appears in the
current definition and we believe that the term ``significant
potential'' would be the appropriate term and one that the regulated
public would understand. It provides a standard between the current
definition, which uses merely ``potential'' and the proposed
definition, which would use the term ``probability.''
Adding a percentage-based modifier, e.g., 20 percent, would make it
even more difficult to enforce because it would indicate that evidence
of that particular level must be presented before enforcement could
occur. We believe this would result in less protection for marine
mammals.
Permitting for Scientific Research
1. Question: It is clear to me from the testimony that we have
heard today that the permitting process for scientific research is
still problematic for many scientists, but I am still not clear on the
root cause of the problem.
Is the permitting process severely limited by a lack of
resources and staff?
Answer: At the pace allowed under current priorities in the context
of the President's Budget, we are making progress in our permits reform
efforts to address the concerns of scientists. The Service is in the
process of reviewing all of its permitting activities to determine how
well they serve the public and conservation of the resources in
question. We have asked the regulated public for input and developed a
permits strategic vision and action plan (Leaving a Lasting Legacy:
Permits as a Conservation Tool, a copy of which is enclosed for your
reference) to improve permitting services, while still ensuring species
conservation. One of our goals is to simplify and streamline the
permitting process. For example, we have developed guidelines with NOAA
Fisheries to process one joint application and issue a single permit in
situations where proposed research activities include marine mammal
species under both agencies' jurisdiction.
Would the development of a classification system
identifying specific activities and their associated risk to marine
mammals be a more useful approach to expedite consideration of
different types of activities on a more programmatic basis?
Answer: The Service agrees that the development of a classification
system could be a useful approach to expedite different types of
activities on a more programmatic basis. One of the objectives of the
Service's permits action plan is to identify activities by level of
risk and to develop consistent policy, guidelines, and procedures for
processing permit applications based on risk. Another objective is to
provide clear policies and regulations to the permitted public. To
accomplish these goals, we are in the process of reviewing which permit
regulations and policies need to be revised or developed.
We note that the review of a permit under the MMPA may also entail
a review under the National Environmental Policy Act and the Endangered
Species Act (ESA--for southern sea otters and manatees). Under some
instances, this may add time to application processing.
Take Reduction Teams
1. Question: A new World Wildlife Fund study released in June
conducted by American and Scottish biologists suggests that accidental
capture or ``bycatch'' by the fishing industry may be the biggest
immediate threat the survival of some marine mammals, especially large
whales. This study analyzed bycatch mortality affecting 125 marine
mammal populations over the period of 1990-1999. The study estimates
that 1000 whales, dolphins, and porpoises drown every day. Annually,
approximately 308,000 marine mammals die unintentionally.
In light of this information, what conclusions can be
drawn about the effectiveness of the Section 118 take reduction team
process?
Should specific types of fishing gear be permanently
retired due to their associated level of bycatch?
Should a robust program be established to dedicate
adequate resources and technical assistance to promote ``marine mammal
safe'' fishing gear?
Answer: Please see the response to the next question.
2. Question: H.R. 2693 would extend the deadlines imposed on take
reduction teams and the agency for requirements under section 118, the
taking of marine mammals incidental to commercial fishing operations.
Have these extensions been requested by the agency?
Have take reduction teams been unable to meet these
deadlines in the past?
Answer: The Service supports the reduction of the incidental taking
of marine mammals in the course of commercial fishing operations, and
encourages efforts to diminish and ideally eliminate such taking.
However, we note that Take Reduction Plans and their associated
process, which are outlined in Section 118 of the MMPA, are under the
purview of the Secretary of Commerce. The Service believes this issue
is more appropriately addressed by our sister agency and, therefore, we
defer to the NOAA Fisheries to respond to these questions.
Stock Assessments
1. Question: Why have stock assessments not been completed for all
stocks of marine mammals? What is the limiting factor? How adequate are
existing population estimates?
Answer: Stock assessments under the MMPA are used as a tool to
assess the status of marine mammal populations and to determine
acceptable levels of incidental take by fisheries. Stock assessments
have been completed for all Service-managed species, however, with the
exception of Alaska species, they are out of date.
Current stock assessments are available for the following stocks in
Alaska: Beaufort Sea Polar Bears; Chukchi/Bering Sea Polar Bears;
Pacific Walrus; Southwest Alaska Sea Otters, Southcentral Alaska Sea
Otters; and Southeast Alaska Sea Otters. Of these stocks, the Southwest
Alaska Sea Otter stock is considered strategic as it is currently under
review for listing under the ESA and therefore, as required by the
MMPA, this stock assessment will be reviewed on an annual basis.
Accurate population estimates and effective techniques for tracking
population trends are critical for management of marine mammals or any
other species. Population information (size, demographics) on marine
mammal stocks managed by the Service in Alaska varies by species. The
Pacific Walrus population has not been surveyed since 1990, and that
survey was considered incomplete due to logistic and technical
limitations of aerial surveys inherent to vast, remote and ice-
dominated environments. The Service hosted a workshop in March 2000 to
review survey techniques and identify strategies for obtaining an
accurate population assessment. As a result of the workshop, the
Service is working with partners to develop new survey techniques using
remote sensing and satellite tracking. A comprehensive survey is
tentatively planned for spring 2005. The Beaufort Sea Polar Bear
population estimate will be revised upon completion of an ongoing mark-
recapture study that is being coordinated with the Canadian Wildlife
Service. A reliable population estimate for Chukchi/Bering Sea polar
bears is not available, although crude estimates have been developed
based on estimates of numbers of denning females on Wrangel Island.
Existing population estimates for sea otters in Alaska will be complete
and current by fall 2003. The southwest stock was surveyed in 2000 and
2001; the majority of the southcentral stock has been surveyed on an
annual basis since the 1989 (following the Exxon Valdez oil spill); and
a comprehensive survey of the southeast stock will be completed by fall
2003.
Regarding southern (California) sea otter, population estimates of
the species are remarkably accurate, in part because of the species'
distribution in nearshore waters, and in part because of the
consistency of the survey methodology, which has been in place since
1983. Because the southern sea otter is listed as a threatened species,
and incidental take of southern sea otters in fisheries is not governed
under Section 118 of the MMPA, the development of stock assessment
reports to determine acceptable levels of incidental take of southern
sea otters is not given a high priority relative to other priorities
competing for the limited funds in our budget. Nevertheless, we are
currently preparing an updated 2003 stock assessment report for the
southern sea otter.
A stock assessment for Washington sea otters was completed in 1995.
In 2001, our Western Washington Fish and Wildlife Office (WWFWO)
contracted with the Washington State Department of Fish and Wildlife
(WDFW) to prepare a draft stock assessment report. The WWFWO is in the
process of preparing the draft stock assessment report for review and
approval.
In the state of Washington, the WDFW and U.S. Geological Survey
(USGS) began regularly surveying the Washington sea otter population in
1987. This population has been surveyed every year since, with a
combination of aerial and ground surveys. The surveys encompass the
currently known distribution of the population, with the exception of
the few individuals that enter into the Puget Sound. The results of the
surveys are not an exact count of the population, but serve as a
minimum population estimate and provide trend information. In
Washington, it would be difficult to obtain a more accurate population
estimate because of the inaccessibility of the coastline.
Regarding the Florida and Antillean manatee, the most recent stock
assessment was also published in 1995. Our Florida Field Office is
currently revising the stock assessment to reflect the most recent
scientific research concerning the status of this species. This
includes the determination made as part of our recent MMPA incidental
take rule-making process that the Florida manatee is comprised of four
separate stocks. However, litigation driven manatee tasks are hindering
our ability to finalize a draft revised stock assessment report.
A statistically robust estimate of the manatee population size does
not exist. However, we do have an estimate of minimum population size
based on annual synoptic surveys conducted throughout the manatee's
winter habitat. Although these are unadjusted counts, we believe they
provide a useful estimate of the minimum population size. The Florida
Marine Research Institute and the USGS are currently conducting
research into better methods for calculating manatee population size.
Zero Mortality Rate Goal
1. Question: Robert Zuanich testified that the marine mammals hold
a loftier status than all other animals in the ocean. Wasn't this at
least, in part, the goal of the protective approach of the MMPA? The
ZMRG codifies this placement of marine mammals in the ocean by stating
that anything above a zero rate mortality and injury rate is
unacceptable. Although clearly intractable, this principle sets a high
bar and a principle for how humans interact with marine mammals.
Can you comment on whether the zero mortality rate goal
should be retained? What is its relation to the precautionary
philosophy of the MMPA?
Answer: The zero mortality rate goal is one of the ways that the
intent of the MMPA is achieved. In enacting the MMPA, Congress found
that certain species and population stocks of marine mammals are in
danger as a result of human activities, and that these species and
stocks should not be allowed to diminish below their optimum
sustainable population levels. Congress affirmed the international,
esthetic, recreational, and economic importance of these species and
recognized the inadequacy of current knowledge of the ecology and
population dynamics of marine mammals.
The taking of marine mammals, incidental to commercial fishing
operations, remains one of the most substantial sources of human-caused
mortality of marine mammals. By setting the goal that commercial
fisheries shall reduce incidental mortality and serious injury of
marine mammals to insignificant levels approaching zero, the ZMRG
applies this goal to the management of interactions between marine
mammals and commercial fishing. The ZMRG, therefore, is important and
appropriate to achieving the objective of ensuring the continued
existence of marine mammals and the critical role they provide to the
marine ecosystem.
Harvest management agreements with Alaskan Natives
1. Question: H.R. 2693 does not revise Section 119 of the current
law, which establishes the authority for marine mammal cooperative
agreements in Alaska. The administration's draft bill would change the
cooperative agreements to harvest management agreements.
Can you elaborate on why this change is important?
Answer: The Administration's bill adds a section that provides a
new framework for developing agreements for active management of
subsistence harvest including development and enforcement of harvest
limits. The existing provisions of Section 119 remain--they would not
be changed or affected by the Administration's proposed amendment.
These cooperative agreements, in general, support collection of
information about subsistence harvest patterns and about the species
harvested. While these existing agreements have supported increased
communication within the subsistence community and provided data on
harvested species, they are limited in scope as they support basic
information gathering and exchange, but are not designed to address
harvest management because any harvest limits would be voluntary and,
therefore, unenforceable. The proposed amendment defines a new type of
agreement to develop and enforce harvest restrictions prior to
depletion, i.e., before a conservation problem develops. Without such
an approach, the status quo is a completely unrestricted harvest unless
a species is depleted under the MMPA, or listed under the ESA (which
automatically confers depleted status under the MMPA), and the managing
agency finds subsistence harvest is limiting population recovery,
followed by a formal rule-making to limit subsistence harvest.
The Alaska Native community, recognizing the desirability of
management prior to depletion, initiated the discussions to develop
harvest management agreements. Their interest was in part a response to
the depletion of beluga whales in Cook Inlet from over-harvest by
subsistence users. Community leaders were frustrated by their inability
to manage that harvest and wanted to work with the resource management
agencies to develop a cooperative management capability to prevent the
recurrence of such situations. Limitations of the current approach
(formal rule-making for depleted and listed species) is further
demonstrated by Cook Inlet beluga whales, as three years later, harvest
regulations are still not finalized.
Do native Alaskans have sufficient capabilities to
support and train enforcement operations for effective co-management?
Answer: Generally, they have the capability to support and train
enforcement operations for effective co-management; however, this
varies among organizations. Agencies would be expected to provide some
technical assistance and training to build capacity and ensure
effective co-management. With appropriate resources, the capabilities
can be developed as demonstrated by the Alaska Eskimo Whaling
Commission, which recently (and effectively) disciplined a boat captain
for violating harvest guidelines for bowhead whales.
Should future co-management agreements with native
Alaskans apply to species or stocks that are already designated as
strategic or depleted?
Answer: It would be helpful to have the capability to develop
agreements for all stocks regardless of status. Under current law,
regulations for subsistence harvest can only be developed for depleted
or listed species if the managing agency can make a positive finding
that subsistence harvest is detrimental to population recovery. These
conditions have only been met for one stock (beluga whales in Cook
Inlet). For all species, regardless of status, the ability to manage
subsistence harvest provides an additional useful management tool,
whether or not harvest levels are related to population status. For
example, the Alaska Eskimo Whaling Commission and NOAA have an
effective agreement for the endangered bowhead whale; this agreement is
a model for other agreements.
Is it likely or desirable for seals, currently under NOAA
Fisheries' jurisdiction, that are used for subsistence to be managed
under the U.S. Fish and Wildlife Service so that all species that
Alaska Natives use for subsistence purposes will be under one agency?
Answer: We assume based on this question that Congress is
interested in evaluating the merits of transferring management
responsibility of ice seals (beard, ringed, ribbon, and spotted seals)
and harbor seals from NOAA Fisheries to the Service. Congressional
action would be necessary to accomplish a change in species
jurisdiction under terms of the MMPA. Several factors should be
considered in evaluating a potential change in management
responsibilities for seals from NOAA Fisheries to the Service. There
are a number of advantages and disadvantages to be considered in making
such a decision.
Initially, such a transition would be disruptive to the public,
government agencies, and other interested parties. NOAA Fisheries has a
long history of conducting research on and management of seals and
whales in Alaska. For example, NOAA Fisheries initiated a harbor seal
assessment program in Alaska in the early 1990s, and has subsequently
reported on the status of this species every three years, as required
by Congress. Regarding ice seal research and management, Congress
appropriated $250K in FY03. A research plan has been jointly
implemented between NOAA Fisheries and the Alaska Department of Fish
and Game.
Further, efforts are currently underway to organize an Alaska
Native Organization that represents the subsistence users of ice seals.
The agency has developed extensive and broad expertise in aspects of
management and research related to seals, sea lions, and whales and
maintaining state of the art research facilities and vessels. NOAA
Fisheries also has a significantly larger overall budget for their
marine mammal activities, including their current seal management
responsibilities. In addition, NOAA Fisheries is currently responsible
for managing the subsistence harvest of bowhead and beluga whales in
Alaska. These harvests occur in many of the same villages where ice
seals are harvested. Finally, NOAA Fisheries has an organizational
structure that closely integrates management at their Alaska Regional
Office and research at their Alaska Fisheries Science Center.
The Service has experience and expertise conducting research on and
management of two other ice-dependent species of marine mammals (polar
bears and Pacific walrus). Given the remote environment and logistic
difficulties in conducting marine mammal studies, such efficiencies can
be quite important in effectively utilizing available resources. The
Service is well positioned to work with the subsistence community as
the agency administers subsistence programs for waterfowl, fish, and
wildlife on Federal lands as well as walrus, polar bears, and sea
otters. The subsistence community is relatively small and integrated--
in general the same people harvest all species in their geographic
area. Having different agencies managing what is a single type of
activity in a rural community can be confusing to the residents. The
Service also maintains an established network throughout rural Alaska
for collecting harvest information. For example, harvest of all sea
otters, polar bears, and Pacific walrus is reported by regulation
through the Marking, Tagging and Reporting program administered by the
Service. This program could also be used to collect harvest information
on ice seals and harbor seals.
We emphasize that, with any change contemplated, it is important
that research and management functions remain within the same agency
for greatest effectiveness. Splitting research and management functions
would be confusing to user groups and the public at large and lead to
inefficiencies and unnecessary complexities in addressing research and
management questions.
Threats to Marine Mammals
1. Question: There seem to be many emerging threats to marine
mammals that were not considered 25 years ago, when the original act
was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action?
This might include identifying data gaps, coming up with
research plans and evaluating the health of marine mammal stocks in the
wild as relates to other environmental parameters.
Would such an undertaking be within the scope and purview
of the MMC?
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
Answer: We agree that marine mammals face new threats that were
either not existent or not as persistent when the MMPA was first
enacted to protect these species over 30 years ago. An evaluation of
threats and potential management issues could be a useful tool for the
managing agencies and interested public.
Identifying and determining the magnitude of existing and emerging
threats to marine mammals is imperative to our abilities to provide
protection to and conservation of these species. However, we must first
identify the various threats and their potential impacts before we can
set priorities or evaluate whether or not they can be addressed.
Furthermore, understanding changes that are inevitable is useful for
developing strategies to avert change, to mitigate the impacts of
change, and to adapt to changes.
A comprehensive overview and planning effort to identify and
evaluate emerging threats would benefit from the involvement of all
parties with appropriate expertise. The Service believes that the
Marine Mammal Commission (MMC) may be uniquely suited to facilitating
efforts to identify data gaps and research needs for examining these
increasing threats, and to developing strategies to address these
issues. Fully identifying issues and their implications for marine
mammal health and survival requires involvement of the resource
management agencies that have the Congressionally-delegated
responsibility under the MMPA for conserving and managing marine
mammals. The Service believes other interested parties, including
academia and other agencies with expertise on potential threats to
marine mammals, should also be included in this process. Through
involvement of all those with expertise and interest in the welfare of
marine mammals, a compilation and evaluation of potential threats and
proposed actions could be developed and would be a useful tool for
protection of marine mammals.
Captive Animal Welfare
1. Question: The 1994 changes to the Marine Mammal Protection Act
gave APHIS the authority for captive marine mammal welfare inspections.
Has APHIS demonstrated requisite expertise and ability to
inspect and oversee marine mammals in captivity?
Answer: While there may be limitations associated with using
minimum requirements under the Animal Welfare Act (AWA), the Service
believes that the Animal and Plant Health Inspection Service (APHIS)
has veterinarians with the expertise necessary to oversee marine
mammals held in captivity. In addition, APHIS has always been
responsive to our consultation requests. The Service works closely with
APHIS to ensure that all marine mammal facilities are being maintained
in compliance with the requirements of the Animal Welfare Act (AWA).
Further, the Service meets with APHIS, MMC, NOAA Fisheries, and
Department of State representatives on a monthly basis to ensure broad-
spectrum oversight of captive-held marine mammals.
How many inspectors does APHIS deploy to inspect display
facilities?
Answer: The Service contacted APHIS in order to provide an accurate
response to this question. APHIS provided the following reply:
APHIS has 100 field inspector positions, and will add several
more in the coming fiscal year. APHIS has additional staff,
including nine supervisory Animal Care Specialists, at its
Regional offices and headquarters.
To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such
standards been provided to the public?
Answer: The Service contacted APHIS in order to provide an accurate
response to this question. APHIS provided the following reply:
APHIS first proposed marine mammal specific regulations and
standards under the AWA in 1978. Theses standards were
finalized in 1979. All regulations and standards promulgated
under the AWA follow all Administrative Procedures Act
requirements, including providing a public comment period and
publishing the final rules in the Federal Register. All AWA
regulations and standards are found in Title 9, Code of Federal
Regulations, Chapter 1, Subchapter A.
The AWA marine mammal regulations were amended from 1983-84. In
1993, APHIS published an advanced notice of proposed rulemaking to
revise and amend the marine mammal standards through a process called
negotiated rulemaking. All major stakeholders in the marine mammal
industry were represented in this process, including animal welfare
groups, the veterinary profession, the Navy, industry groups,
independent marine mammal experts, NOAA Fisheries, the Service, and the
MMC, although the agencies participated as non-voting members. The
negotiated rulemaking process was undertaken under the Federal Advisory
Committee Act, and the public was welcome to observe all meetings. The
proposed rule for 13 of the 18 sections of the regulations was
published in February 1999 and the final rule was published in January
2001. The sections not included in the negotiated rulemaking will be
handled under more traditional rulemaking procedures.
Subsequent to the 1994 MMPA amendments, APHIS published a proposed
rule for swim-with-the-dolphin programs in January 1995. A final rule
was published in September 1998. Changes in the types of programs being
offered and other issues raised led APHIS to suspend enforcement of the
SWTD rule until the issues could be reviewed. All facilities remained
regulated under the general marine mammal standards of the AWA.
In May 2002, APHIS published an advanced notice of proposed
rulemaking requesting public input and information in anticipation of
publishing a proposed rule to cover the marine mammal sections not
covered in the negotiated rulemaking and amendments to the SWTD section
of the standards. APHIS has received 365 comments on the ANPR and is
currently drafting the proposed rule docket. This docket is anticipated
to be published for public comment in 2004.
The rulemaking process is open to the public and APHIS makes the
documents available on our Animal Care web page. Once a rule is final,
the new regulations and standards are included in the CFR and on the
Animal Care web page. In addition, all licensees and registrants are
notified of all final rules.
Is there any oversight or reporting requirements for
APHIS in the discharge of this responsibility? Should APHIS be required
to report annually to Congress?
Answer: The Service contacted APHIS in order to provide an accurate
response to this question. APHIS provided the following reply:
For over 30 years, APHIS submitted an annual report to Congress
as required by the Animal Welfare Act (7 U.S.C. 2155). Once
released by Congress, the report was posted on our website.
However, the AWA annual report is no longer required to be sent
to Congress as result of criteria established under P.L. 104-
66. Accordingly, APHIS is exploring different formats that will
allow enforcement statistics and supporting materials to be
posted to our website in a more timely fashion, ensuring that
all of our stakeholders have immediate access to this important
information.
2. Question: The public display community has complained that NOAA
Fisheries deliberately misinterpreted the intent of Congress in 1994 in
its promulgation of regulations regarding permits allowing the
transport and exchange of captive marine mammals.
Is this complaint valid?
If not, what aspect of the proposed regulations should be
revised?
Answer: The Service is not aware of the particular complaint
referred to in this question, and we defer to NOAA Fisheries for a
response. With regard to the proposed regulation, the Service provided
comments to NOAA Fisheries on the proposal relating to permits for the
capture or import marine mammals, as well as the transport, transfer,
and export of marine mammals. The Service will continue to consult with
NOAA Fisheries as they draft their final regulations.
Captive Release Prohibition
1. Question: H.R. 2693 includes a prohibition on releasing captive
marine mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
Answer: The prohibition on the release of captive marine mammals
included in H.R. 2693 would not affect stranded marine mammals being
held for rehabilitation purposes under section 109(h) of the MMPA.
Section 109(h) requires steps to be taken to return stranded marine
mammals to their natural habitats whenever feasible, i.e., when health,
behavior, and survivorship issues have been addressed. Only stranded
marine mammals that are determined to be non-releasable are placed in
permanent captivity. The new provision in H.R. 2693 would ensure that
marine mammals, other than those undergoing rehabilitation, could be
released only under a permit for scientific research or enhancement of
recovery. This would protect the captive and wild animals that might be
negatively impacted by a well-intentioned, but poorly conceived,
release.
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
Answer: This question refers to animals under the jurisdiction of
NOAA Fisheries, therefore, we defer to our sister Agency for a
response.
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
Answer: This question also refers to an action under the
jurisdiction of NOAA Fisheries, and we similarly defer to them for a
response.
______
Response to questions submitted for the record by Dr. Rebecca Lent,
Deputy Assistant Administrator for Fisheries, National Marine Fisheries
Service, National Oceanic and Atmospheric Administration, U.S.
Department of Commerce
Questions Submitted by Chairman Wayne Gilchrest
1. Question: Concerns have been raised that NMFS has not done
enough to address ship strikes of marine mammals. Can you tell us what
the Agency has done to reduce ship strikes? Does the agency have any
jurisdiction over vessel traffic?
Answer: NOAA Fisheries has a program to reduce ship strikes that
has been ongoing over the last decade and has been expanded in recent
years as ship strikes continue. To date, the agency has focused most of
its efforts to reduce ship-marine mammal interactions on the North
Atlantic right whale, due to its critically endangered status, its
particular vulnerability to ship strikes, and Congressional and public
interest. Efforts to address ship strikes of right whales are believed
to provide ancillary benefits to other marine mammals and to serve as a
template to address the issue more broadly with other marine mammals.
Ongoing activities include aerial surveys to notify mariners of right
whale sighting locations; operation of the northeast U.S. and southeast
U.S. mandatory ship reporting systems to provide information to
mariners entering right whale habitat; working with the U.S. Coast
Guard (USCG) to issue periodic notices to mariners regarding ship
strikes; support of Recovery Plan Implementation Teams that provide
recommendations to NOAA Fisheries on recovery activities; support of
shipping industry liaisons; and Endangered Species Act (ESA) Section 7
consultations. In addition, the agency funds research to investigate
technological devices that may aid in reducing the likelihood of ship
strikes. Since such advances may cause adverse biological effects, any
approved ship strike reduction technology must also meet legal and
biological criteria to ensure that it does not adversely affect an
endangered species and can be permitted for use.
The agency recognizes that this is a complex problem that requires
additional, more pro-active measures. In late 2001, NOAA Fisheries
formed a working group to address the issue of ship strikes. This
process culminated in the agency's development of a Ship Strike
Reduction Strategy, approved by NOAA in May 2003. The Strategy is a
multi-year blueprint of specific steps to be taken to reduce or
eliminate the threat of ship strikes that incorporates regional
differences in oceanography, commercial ship traffic patterns, and
navigational concerns. Since interagency collaboration is key to the
Strategy's success, NOAA Fisheries sent out letters to agency
counterparts in August 2003 to establish an Interagency Working Group
on the Reduction of Ship Strikes to Right Whales to aid in the
Strategy's implementation and enforcement. The purpose of this Working
Group is to review and provide comments on the Strategy, provide
clearance on two proposed international measures, assist NOAA in
identifying means to ensure the implementation of a robust Strategy,
and establish a timeline.
NOAA Fisheries expects to publicly announce the Strategy following
the initial establishment of the Interagency Working Group. The Working
Group is expected to meet for 6-8 months. Initial steps have been made
toward NEPA analysis, and economic impacts are being evaluated for
potential regulation. Further, a ship strike outreach and education
plan has been developed as an integral part of the NOAA Ship Strike
Reduction Strategy; at present, the Northeast and Southeast Right Whale
Recovery Plan Implementation Teams are helping NOAA Fisheries begin to
implement this plan.
In response to the second part of the above question, NOAA
Fisheries has responsibilities for right whales under the ESA and the
Marine Mammal Protection Act (MMPA); however, the USCG is the agency
with primary responsibility for the regulation of ship traffic under
the Ports and Waterways Safety Act (PWSA). While it may be possible for
NOAA to implement some measures of the Strategy through the ESA and
MMPA, the PWSA provides more explicit statutory authority for measures
contained within the Strategy that deal with ship traffic. NOAA will
work closely with partners, such as the USCG, to carry out the goals of
the Strategy to the fullest extent.
2. Question: It was reported at the hearing that Canada has altered
its shipping traffic into the Bay of Fundy and incorporated speed
reductions in certain areas to help reduce ship strikes of right
whales. It was mentioned that this was done using the International
Maritime Organization (IMO) process. Are you familiar with the actions
taken by Canada? Did they institute these actions using national
legislation or was is done solely through the IMO? Could the U.S. take
similar actions? Would it require legislation?
Answer: NOAA Fisheries is aware of Canada's actions to change its
shipping lanes to help reduce ship strikes of right whales. The changes
approved by the IMO came about through a four-year collaborative
process involving Transport Canada, industry, and research and
conservation organizations. Canada's federal government Habitat
Stewardship Program also provided support for initial research and
consultation projects that contributed to the lane change proposal.
Lane changes have required amendments to navigational charts, vessel
traffic control procedures, and distribution and notification
procedures.
NOAA Fisheries was regularly consulted for advice during the
development of this proposal. Through the agency's efforts, the United
States Government was an active supporter of the Canadian proposal at
IMO and helped Canada lobby to get the proposal approved by the
Subcommittee on Safety of Navigation.
Although we are uncertain whether legislation is actually necessary
under Canadian law to implement the change, action is undoubtedly
required by Canada since IMO is not a supranational body. IMO only
approves and adopts vessel traffic measures and it is up to the
proposing government (in this case Canada) to implement the change. It
should be noted that in the case of the Canadian proposal to amend the
Bay of Fundy Traffic Separation Scheme that the action to be taken was
in some ways much clearer than the action that should be taken to
address the circumstances the United States faces off its coast. Years
of research in the Bay of Fundy demonstrated that the traffic
separation scheme ran directly through the highest abundance of whales
and the risk could be reduced by moving the traffic toward the coast,
where there was still sufficiently deep water for navigation to take
place.
Measures contained within the NOAA Fisheries Ship Strike Reduction
Strategy seek to reduce the overlap of ships and whales to reduce the
likelihood of ship strikes, in part through routing changes. NOAA
Fisheries has developed its Strategy as a multi-faceted package,
elements of which may require IMO approval for effective
implementation. In addition, all of these elements will require actions
within the U.S. NOAA Fisheries is beginning the interagency process to
determine how the Strategy will be most effectively implemented and
whether the actions will require additional legislation.
3. Question: The paragraph in level B harassment that starts ``is
directed toward a specific individual,'' is still making a number of
permitted constituency groups uneasy. We understand why the agency
wants this language, to prosecute those non-permitted activities that
harass marine mammals. We included the language in H.R. 2693 to address
the concerns of the agency. However, we are questioning the need for
the paragraph. Since the phrase ``pursuit, torment, and annoyance'' has
been deleted from the definition leaving the standard as ``any act--
can't the agency prosecute these non-permitted activities without this
added paragraph?''
Answer: Deleting the terms ``pursuit, torment, or annoyance'' from
the definition of harassment is key to improving the harassment
standard's enforceability. While deleting these terms would help,
through the Administration bill's proposed Section 3(18)(B)(ii), NOAA
Fisheries and the U.S. Fish and Wildlife Service seek different
language for regulating harassment incidental to a particular activity
and harassment that is directed at individuals or groups of marine
mammals in the wild. Specifically, this language is intended to make
explicit that activities such as closely approaching, swimming with, or
touching marine mammals that may not overtly lead to significant
alteration of the marine mammal's natural behavioral pattern at the
time, but that are likely to cause disruption of natural behavioral
patterns that are associated with cumulative, long-term harm to marine
mammals, constitute harassment. As such, in an enforcement proceeding
for harassment described in the Administration bill's proposed Section
3(18)(B)(ii), the agencies would not need to show that disruption of a
behavior was significant. In addition to enhancing enforcement of the
harassment standard, this paragraph will help agencies better educate
members of the public about avoiding marine mammal harassment when
recreating in waters used by the animals.
We would like to emphasize that this language will not adversely
affect the scientific research community since there is already a
process in place under Section 104 of the MMPA and its implementing
regulations regarding General Authorizations for bona fide scientific
research on marine mammals that results in no more than Level B
harassment. This provides the scientific research community with a
streamlined process to conduct such research.
4. Question: The current definition of harassment has made it
difficult for the agency to prosecute certain activities that harass
marine mammals. Can you tell us what activities the agency has been
able to enforce under the current definition?
Answer: NOAA Fisheries has been successful in prosecuting
violations involving observable actual injury of marine mammals, such
as a recent case involving the shooting of a sea lion with a bow and
arrow. In addition, the agency has successfully prosecuted violations
involving feeding or attempting to feed marine mammals in the wild. The
current definition of harassment has been an impediment to prosecutions
for activities such as swimming with, touching or petting marine
mammals in the wild.
5. Question: How do you suggest that we protect, to the greatest
extent possible, marine mammals from injury in Level A harassment
within a statutory and regulatory framework?
Answer: Given that marine mammals may be injured incidental to the
conduct of otherwise lawful activities (other than commercial fishing),
such as commercial shipping, oil and gas exploration and development,
harbor construction, and military activities, the MMPA requires that
taking incidental to such activities be authorized only if it is
determined that the taking will have a negligible impact on the
affected populations. Further, any such authorization is to be
structured to ensure that the taking is reduced to the lowest level
practicable. In that regard, the incidental take authorization process
would be improved by removal of the term ``small numbers'' because the
negligible impact standard, coupled with the requirement that taking be
reduced to the lowest level practicable, should be sufficient to
protect marine mammals without the small numbers provision.
In addition, the current statutory framework should be supported by
enforcement, educational outreach, and research to develop more
effective mitigation and safe alternatives to current operating
practices. Fiscal resources for these activities have been constrained
in the past and the agency hopes to prioritize funds toward increased
research, outreach, and education efforts in the future.
6. Question: What are some of the factors Congress should consider
when crafting a final harassment definition?
Answer: We encourage Congress to consider the same factors the
Administration considered when developing amendments to the harassment
definition: 1) enhancing enforceability of the harassment standard; 2)
clarifying the threshold for what activities do and do not constitute
harassment by narrowing the breadth of the current definition to those
acts that have biologically significant, harmful effects on marine
mammals, rather than those that have de minimis effects; and 3) making
explicit that activities directed at marine mammals in the wild that
are likely to disturb the animals are considered harassment and should
be avoided since this can result in harm to the animals, as well as the
people who conduct these activities.
7. Question: How do we incorporate the level of current scientific
knowledge about how marine mammals may be injured and at the same time
protect animals from injuries we have not yet been able to measure?
Answer: Marine mammals may be injured by a variety of human
activities, including shipping traffic, fishing, pollution, scientific
research, and noise. While we have information on the degree and types
of injuries that result from some activities, such as ship strikes and
fishing gear, we are still collecting information on the types of
injuries that result from others, such as noise and pollution. The
important thing is to use what we do know about the impacts of some
activities, combined with examination of those areas where uncertainty
exists, to ensure that impacts of human activities on marine mammals
are negligible where possible. In addition, the agency identifies and
prioritizes research to better investigate those activities where there
is a combination of uncertainty and concern about their impact on
marine mammal stocks.
8. Question: How should scientific research activities with
potential impacts on marine mammals be treated by the incidental permit
process in statute if the activity is designed to test the level of
harassment that the activity causes in certain marine mammal species?
Answer: Thus far, scientific research designed to test the level of
harassment caused by a specific activity, such as use of airguns in
seismic exploration, has involved direct takes of marine mammals
through attachment of tags or close approaches to document changes in
behavior. Such activities are authorized under permits issued pursuant
to Section 104 of the MMPA (and Section 10 of the ESA where threatened
or endangered species are involved). It is appropriate to continue to
authorize takes for research activities directed at marine mammals
under this section of the MMPA because of the distinction the MMPA
makes between permits for acts that intentionally result in harassment
versus authorizations for those activities that incidentally result in
harassment. The distinction is very clear: If the activity does not
involve scientific research on marine mammals, the researcher should
apply for an incidental take authorization under Section 101(a)(5) of
the MMPA. If the activity involves scientific research on marine
mammals, then the researcher should obtain a scientific research permit
under Section104 of the Act. Both processes work well and NOAA
Fisheries is not proposing changes to these processes at the current
time.
9. Question: What is the difference between ``probability'' and
``potential'' in describing the level of concern that would generate a
need for an incidental take permit under Level A harassment (injury)
for a particular activity?
Answer: Because these terms are not currently included in (in the
case of ``probability'') or defined in (in the case of ``potential'')
the MMPA, we look to the ordinary meaning of the terms as they appear
in the dictionary. Webster's New International Dictionary, 2nd ed.,
unabridged, provides that the term ``potential'' means ``that which is
possible.'' Thus ``potential to'' implies a greater than 0% chance of
causing a particular outcome. ``Probability'' is that ``quality or
state of being probable,'' which implies having more evidence for than
against (greater than 50% chance) the occurrence of a particular
outcome. When applied to Level A harassment, the phrase ``potential to
injure'' would mean any activity that could possibly cause injury would
be considered harassment under the MMPA. The phrase ``probability to
injure'' would mean any activity that is likely to or has greater than
a 50% chance of causing injury would be considered harassment.
While the threshold for Level A harassment using the term
``potential'' is likely too low, the threshold using the term
``probability'' is too high and could result in a difficult burden of
proof for NOAA Fisheries and U.S. Fish and Wildlife Service to
demonstrate a certain probability of injury before the agencies could
take action to address activities injurious to marine mammals. The
agencies looked at a range of options in the development of the
Administration bill to clarify that the appropriate threshold for an
act to constitute Level A harassment was somewhere in between
``probability to injure'' and ``potential to injure.'' Ultimately, the
Administration decided that ``significant potential to injure''
achieved the appropriate balance to allow the agencies to address
harassment involving injury.
10. Question: How should the broader impacts or potential impacts
of sound (for example ship propellers) that may disturb or disrupt
natural behaviors of marine mammals, be treated in statute?
Answer: There is a long list of the ``potential'' impacts of noise
on marine mammals, although there is little scientific information
corroborating actual impacts. We have a poor understanding of what the
actual noise levels resulting from human activities are in most of the
ocean, much less how they relate to pre-industrial levels. For
instance, while propeller hum is highly likely to mask whale
communication calls, it is unknown over what range and period of time
this occurs. We have little data on how shipping causes masking of
acoustic signals for marine mammals. And, we currently have no
mechanism to gauge the cumulative impacts of human noise pollution on
populations of animals. Given all these uncertainties, it is difficult
to recommend specific statutory language addressing noise impacts.
Rather, at this time what is needed is a greater emphasis on efforts to
understand the nature and extent of noise impacts and sufficient
flexibility in the MMPA to address ocean noise in a practical but
cautious manner as we obtain more information on the nature of the
noise impacts.
Question 11: How should the range of currently non-permitted
activities that may be directed at marine mammals (i.e. feeding or swim
with dolphin activities, or jet ski harassment) be treated by the
statutory or regulatory process?
Answer: As NOAA Fisheries provided in an Advance Notice of Proposed
Rulemaking on the subject, at 67 FR 4379,4380 (January 30, 2002):
Interacting with wild marine mammals should not be attempted, and
viewing marine mammals must be conducted in a manner that does not
harass the animals. NOAA Fisheries cannot support, condone, approve or
authorize activities that involve closely approaching, interacting or
attempting to interact with whales, dolphins, porpoises, seals or sea
lions in the wild. This includes attempting to swim with, pet, touch or
elicit a reaction from the animals. NOAA Fisheries believes that such
interactions constitute ``harassment'' as defined in the MMPA since
they involve acts of pursuit, torment or annoyance that have the
potential to injure or disrupt the behavioral patterns of wild marine
mammals.
We encourage Members of Congress to consider amendments to the
harassment definition contained in the Administration MMPA
reauthorization bill to address this issue. That language would
consider as a second tier of Level B harassment, ``any act which 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.'' If this amendment were adopted, NOAA Fisheries would
clarify its intent and application in regulations to provide further
guidance to the public.
12. Question: In the definition of Level B harassment, does it make
sense to qualify the activity (migration, breeding) or the effect
(biologically significant disruption of behaviors) in Level B
harassment? Why or why not?
Answer: The Administration bill in proposed Section 3(18)(B)(i)
would qualify the effect in Level B harassment by providing that the
act ``disturbs or is likely to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of natural behavioral
patterns...to a point where such behavioral patterns are abandoned or
significantly altered.'' [Emphasis added.] One reason that this was
proposed was to clarify that Level B harassment under this subparagraph
means those acts that have biologically significant, harmful effects on
marine mammals rather than those that have de minimis effects.
13. Question: Which is the more scientifically used term
``biologically significant activity'' or ``biologically significant
disruption?'' Should either of these terms be defined in H.R. 2693?
Answer: There is much published information on what activities
would commonly be considered ``biologically significant'' in terms of
what is necessary for an individual animal to maintain homeostasis or
for a population to be maintained (e.g., sheltering, feeding, or
breeding). Therefore, it would not be necessary to define
``biologically significant activity'' in H.R. 2693. ``Biologically
significant disruption'' is much more subjective, especially given
scientific uncertainty, and could, therefore, be more difficult to
implement. It would be useful for Congress to provide guidance to the
agency on the intent of this phrase.
14. Question: Is it possible to define ``harassment'' and still
provide the agency flexibility to modify its regulations to respond to
new scientific information?
Answer: Yes. For example, the Administration's proposed definition
of harassment still links the level of disturbance, in the case of
Level B harassment, to natural behavioral patterns such as migration,
breeding, nursing, and others, such that when scientific information
becomes available better demonstrating the impact of a particular
disturbance on one of these activities, NOAA Fisheries could revise its
regulations regarding the threshold for harassment accordingly.
15. Question: Which would you describe, feeding or foraging, as
more biologically significant in terms of behaviors of marine mammals
that should be listed in the definition of harassment?
Answer: Most ecologists and marine mammal scientists would consider
these two terms generally synonymous. However, while foraging includes
the search, pursuit, capture, handling and consumption of food items,
feeding is generally viewed as actual consumption. In terms of
biological significance, the entire process of foraging is important.
Either could be used to represent a biologically significant marine
mammal behavior. Any list of biologically significant behaviors in the
harassment definition, should not be stated in such a way that it would
be viewed as exhaustive. Rather, it should be clear the list of
behaviors is merely illustrative, but not exclusive.
16. Question: The Administration's definition uses ``surfacing''
instead of ``breathing'' which is in the current definition of
harassment. Why was this change made?
Answer: ``Surfacing'' is a broader term that captures a variety of
important natural behavioral patterns, such as resting and avoidance of
impacts at depths, in addition to breathing. As such, its use is
preferable to ``breathing'' in the harassment definition.
17. Question: Does the agency interpret and/or implement Level A
harassment for an activity interacting with marine mammals as an
imminent death of the animal or as a recoverable injury?
Answer: In the context of incidental takes of marine mammals, MMPA
Section 101(a)(5)(D) sets forth a streamlined process for issuing one-
year authorizations for incidental taking by harassment only. The
definition of Level A harassment refers to those activities that have
the potential to injure a marine mammal; therefore those activities may
qualify for the authorization process under Section 101(a)(5)(D).
However, for activities that will result in taking by more than just
harassment, take authorizations are governed by the less streamlined
process under Section 101(a)(5)(A). Therefore, if an activity is likely
to result in take by mortality, including through injury that is likely
to result in mortality, NOAA Fisheries will treat such a take
authorization request under the requirements of Section 101(a)(5)(A).
18. Question: What activities could injure an animal, but not cause
a mortality?
Answer: Virtually any activity that occurs in the ocean, or causes
a change in ocean micro-climates could kill or injure marine mammals;
however, some are more likely to result in death or injury than others.
Research activities can occur that cause injury but are not likely to
result in mortality if the animal is otherwise in good health. For
example, remote biopsy sampling a right whale causes a puncture wound
(an injury), but it is highly unlikely that the small wound would
result in death. Other activities, such as disturbance that interferes
with important behaviors like breeding or feeding may not directly
cause mortality, but can have chronic or cumulative sub-lethal effects
that reduce an individual's fitness (e.g., compromise its immune
system, prevent it from breeding successfully). Commercial activities
not directed at marine mammals, such as commercial/recreational
fishing, may also incidentally injure an animal but not cause
mortality. However, authorizations for these activities may include
measures to mitigate potentially lethal effects. NOAA Fisheries has
received reports about marine mammals that have been entangled and
injured (e.g., cuts, bruises) in fishing nets but that ultimately are
released or able to escape due to human intervention or gear
modifications that aid escapement of entangled animals. In fact, large
whales are often identified by scars from fishing gear in which they
became entangled, but from which they ultimately escaped. Recreational
activities directed at marine mammals (e.g., closely approaching by jet
ski, swimming with wild marine mammals) can also result in both short
and long term injury to an animal but are not likely to result in
death.
19. Question: How much research is funded by the Agency to
determine the effects of human caused sound in the ocean on marine
mammals?
Answer: NOAA Fisheries supports a scientific program related to
acoustics and the effects of noise on marine animals (mammals and
turtles) at a level of $200,000 per year (for each of the last three
fiscal years).
20. Question: Concerns have been raised regarding the scientific
basis used by the agency to list fisheries as category I (frequent), II
(occasional) or III (remote) under section 118 of the Act. What
information does the agency use when making these determinations?
Answer: The current fishery classification system was developed by
NOAA Fisheries scientists and is rooted in the relationship between
allowable mortality and serious injury and the amount of time it takes
a particular marine mammal stock to recover to its optimum sustainable
population (OSP) level. The classification system is based on a two-
tiered, stock-specific approach that first addresses the total impacts
of all fisheries on each marine mammal stock and then addresses the
impacts of individual fisheries on each stock. Tier 1 considers the
additive fishery mortality and serious injury for a particular stock,
while Tier 2 considers fishery-specific mortality for a particular
stock. This approach is based on the rate, in numbers of animals per
year, of serious injuries and mortalities due to commercial fishing
relative to a stock's potential biological removal (PBR) level.
Under the Tier 1 analysis, if the total annual mortality and
serious injury across all fisheries that interact with a stock is less
than or equal to 10 percent of the PBR level of such a stock, then all
fisheries interacting with this stock would be placed in Category III.
Otherwise, these fisheries are subject to the next tier to determine
their classification. Under the Tier 2 analysis, those fisheries in
which annual mortality and serious injury of a stock in a given fishery
is greater than or equal to 50 percent of the stock's PBR level are
placed in Category I, while those fisheries in which annual mortality
and serious injury is greater than 1 percent and less than 50 percent
of the stock's PBR level are placed in Category II. Individual
fisheries in which annual mortality and serious injury is less than or
equal to 1 percent of the PBR level would be placed in Category III.
The threshold between Tier 1 and Tier 2 was set at 10 percent of
the PBR level based on recommendations that arose from a PBR Workshop
held in La Jolla, California, in June 1994. The Workshop Report
indicated that if the total annual incidental serious injury and
mortality level for a particular stock did not exceed 10 percent of the
PBR level, the amount of time necessary for that population to achieve
the OSP level would only increase by 10 percent. Thus, 10 percent of
the PBR level for a particular stock was equated to ``biological
insignificance.'' This approach ensures that fisheries are categorized
based on their impacts on stocks and allows NMFS to focus resources on
those fisheries that have more than a negligible impact on marine
mammals.
The agency uses observer program data, where available, to place
fisheries into one of the three categories. Observer programs collect
information on the incidental mortality and serious injury of marine
mammals, in addition to other information. While the agency uses
observer data to place a fishery into Category I, NOAA Fisheries
regulations provide that other factors, such as fishing techniques,
gear used, methods used to deter marine mammals, target species,
seasons and areas fished, qualitative data from logbooks or fisher
reports, stranding data, and the species and distribution of marine
mammals in the area, where appropriate, may be evaluated to determine
whether fisheries should be placed in Category II.
21. Question: Why did the Administration use the term ``non-
commercial'' in its amendments to section 118? What types of fishing
was this language trying to capture?
Answer: The Administration bill does not contain the term ``non-
commercial'' fishery, but specifically would apply the Section 118
provisions to ``listed fisheries,'' defined as a fishery included on
the list of fisheries published under Section 118(c). In effect, this
would enable NOAA Fisheries to address any source of fishery-related
incidental mortality or serious injury of marine mammals occurring on a
frequent or occasional basis. The sectional analysis describing the
Administration bill refers to expanding Section 118 provisions to
``non-commercial fisheries.'' NOAA Fisheries uses this term to include
those recreational, personal use, or other fisheries that result in
frequent or occasional incidental mortality or serious injury of marine
mammals. The reason for these amendments is to allow NOAA Fisheries to
equally address all fishing gear that is found to have frequent or
occasional incidental mortality or serious injury of marine mammals and
not limit the focus to commercial fisheries when other fisheries may be
using the same gear in a similar manner.
22. Question: There have been a number of instances where research
activities or other activities using sonar were enjoined by the courts.
The reason these activities were stopped wasn't because of MMPA issues,
but lack of compliance with the National Environmental Policy Act or
the Administrative Procedure Act requirements. What actions has the
agency taken to address these issues?
Answer: All applications for scientific research permits under the
MMPA must comply not only with the requirements of Section 104(c)(3) of
the Act, but with NEPA, and any other applicable laws (e.g., ESA).
Environmental Assessments and Environmental Impact Statements are being
prepared for any proposed research on marine mammals that would result
in adverse effects on an endangered species, could result in cumulative
adverse impacts on the human environment, or for which the impacts are
uncertain. To ``front-load'' the scientific research permit process,
the agency is conducting programmatic NEPA analyses on various
scientific research programs including acoustics. Additionally, NOAA
Fisheries recently hired national and regional NEPA coordinators to
help train staff and provide expertise throughout this and other NEPA
processes.
Other activities that seek authorization under Section 101(a)(5)
often have a NEPA analysis conducted on the activity or authorization
by a different Federal agency (for activities authorized, funded, or
carried out by a Federal agency), and NOAA Fisheries continues to
assist other Federal agencies in conducting these NEPA analyses.
23. Question: Questions regarding the use of observer data have
been raised by a number of groups. Can observers collecting fishery
data also collect marine mammal data and vice versa or are they
restricted to collecting only one type of data? If so, why?
Answer: In most cases, observers collect information on all catch
and bycatch (finfish, marine mammals, sea birds, sea turtles, and other
species). NOAA Fisheries created its National Observer Program
specifically to coordinate existing statutory requirements for
monitoring fisheries and to ensure that observer programs are
collecting data to fulfill all these requirements. More specifically,
all observers are trained in the identification of marine mammals and
other species and collect data on a range of conservation and
management issues, including species composition of the catch; weights
of fish caught; and bycatch of finfish, marine mammals, sea turtles,
and other protected species. Observers fill out and submit forms to
NOAA Fisheries that report on all of the above information.
Nonetheless, different data collection protocols are applied in
terms of sampling designs for observer coverage in order to account for
the differences in the nature and occurrence of marine mammal/other
protected species bycatch versus finfish bycatch. Given the nature of
marine mammal and other protected species bycatch, sampling methods for
observer programs primarily devoted to monitoring marine mammal bycatch
may vary from those primarily devoted to monitoring finfish bycatch.
For example, because protected species bycatch events tend to be rarer
than finfish bycatch events, marine mammal observer programs may
require increased coverage and allocation of observers to vessels
operating in distinct locations in order to obtain an accurate
depiction of the occurrence of marine mammal bycatch. NOAA Fisheries
allocates observers to fisheries to monitor incidental mortality and
serious injury of marine mammals as well as to fulfill other statutory
obligations as resources allow.
24. Question: How long does it take the agency to disseminate the
data collected by the observers? Is there a backlog on reviewing and
using this data?
Answer: Availability of data varies from program to program, but in
general the data are subject to a quality control review that takes a
maximum of 60-90 days before it is made available to NOAA Fisheries
scientists and managers, as appropriate.
Processing observer program data is labor-intensive. Situations in
which there are delays in analyzing and processing data are usually due
to human resource constraints, specifically, insufficient analytical
support. Where this has been a problem, NOAA Fisheries has requested
additional FTEs both for better oversight and for analytical support.
25. Question: There have been comments about the cumulative effects
of activities on marine mammals. What is our current state of knowledge
regarding cumulative effects? Do we currently have the ability to
determine how different activities cumulatively affect marine mammals?
Is it possible for any marine mammal affected by different activities
to have time to recover from the first effect prior to the second
effect happening?
Answer: We generally do not know the cumulative effects of many
different activities on marine mammals. However, monitoring programs
that are part of authorizations to take marine mammals incidental to
various activities and behavioral observations have provided data upon
which some estimates may be based. For example, tagging and monitoring
animals over the long-term following a human interaction allows NOAA
Fisheries to evaluate the impacts of various activities and to estimate
whether and how soon after a certain activity marine mammals resume
their normal activities (such as pinnipeds hauling out on a beach after
a disturbance has displaced one or more animals).
Marine mammals affected by different activities can recover from
some of the effects. For example, if an activity disturbed seals or sea
lions from a haulout site, they generally return to the area after a
relatively short time. On the other hand, if a marine mammal were
injured incidental to a human activity, recovery, if it occurs, may be
prolonged. There is insufficient information to predict how many
disturbances (or how often they would have to occur) are required to
cause a marine mammal to avoid a specific area due to the disturbances.
Therefore, such cumulative effects must be based on what data are
available and on assumptions. NOAA Fisheries is working with its
partners, including the Marine Mammal Commission, to investigate the
cumulative impacts of some human activities, such as noise.
26. Question: How can we manage for cumulative effects when we may
not have scientific knowledge on how activities actually affect marine
mammals? If we were to manage based on what we thought were the
impacts, wouldn't that create havoc with the different industries and
scientists that may have interactions with marine mammals?
Answer: The Findings section of the MMPA sets a high standard for
marine mammal protection, stating, ``Marine mammals have proven
themselves to be resources of great international significance,
esthetic and recreational as well as economic, and it is the sense of
the Congress that they should be protected and encouraged to develop to
the greatest extent feasible commensurate with sound policies of
resource management and that the primary objective of their management
should be to maintain the health and stability of the marine
ecosystem.''
While the Act does not provide specific guidance with respect to
addressing cumulative impacts, it is clear in its intent that resource
management policies should ensure marine mammal protection to the
greatest extent feasible. Thus, NOAA Fisheries attempts to manage for
cumulative effects first by using what we know in the most effective
manner and making assumptions based upon what we do know to fill in
gaps in scientific knowledge. In addition, we design research and
monitoring measures for activities to fill in gaps in scientific
knowledge. By utilizing tools like mitigation measures on
authorizations, the agency strives to ensure that research and other
human activities can continue, while ensuring to the greatest extent
possible that the conservation of marine mammals is not compromised.
Questions Submitted by The Honorable Frank Pallone, Jr.
Definition of harassment:
1. Question: Over the past year, Congress has been presented with
several different options to re-define the definition of harassment. A
new definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
Answer: NOAA Fisheries is pleased that H.R. 2693 has sought to
address the enforceability and clarity of the current harassment
definition by proposing amendments to the definition. In particular, we
support H.R. 2693's deletion of the words ``pursuit, torment, or
annoyance'' since this phrase adds an additional hurdle the agency must
meet before it can address acts involving injury or disturbance, making
it more difficult for the agency to address cases of harassment. The
Administration's amendments to the harassment definition would make
this same change.
We also support H.R. 2693's inclusion of a second tier for Level B
harassment, which makes explicit that activities that are directed at
individuals or groups of marine mammals, such as swimming with, closely
approaching, touching or feeding these animals in the wild, that are
likely to disrupt marine mammal behavior constitute harassment. While
the language in the Administration bill differs slightly from that in
H.R. 2693, the effect of this section in both bills would be similar.
We support the intent of the bill's proposed changes to the current
definition of Level B harassment. These changes under the first tier of
Level B harassment will clarify that Level B harassment means those
acts that are likely to result in biologically significant, harmful
effects rather than those activities that result in de minimis impacts
on marine mammals. Overall, the proposed definition of harassment
contained in H.R. 2693 is similar in intent to the one in the
Administration proposal. Both proposed definitions will result in more
meaningful protections for marine mammals and apply a clearer standard
of harassment to the entire regulatory community. Nonetheless, we are
concerned that H.R. 2693's proposal to retain the language, ``potential
to disturb,'' would perpetuate the overly broad standard of Level B
harassment, inasmuch as it would include even a very remote possibility
that disturbance might occur. We believe that the standard included in
the Administration proposal, ``disturbs or is likely to disturb,''
provides a more appropriate delimitation concerning what activities
should be covered under this part of the harassment definition. We also
note that the Administration bill does not include ``care of young'' or
``predator avoidance in the list of behaviors in Level B harassment.
With regard to changes H.R. 2693 would make to Level A harassment,
we are concerned about the use of the word ``probability'' in the
phrase ``probability to injure.'' Specifically, since the word
``probability'' implies that a particular outcome is more likely to
occur than not (i.e., with greater than a 50% likelihood), we are
concerned that this standard may create too high a threshold for an act
to constitute harassment. The Administration bill clarifies that Level
A harassment is an act with the ``significant potential to injure.''
This term clarifies that the threshold for Level A harassment is higher
than the current threshold, which implies that an act having any remote
possibility to cause injury could constitute harassment, and lower than
the threshold in H.R. 2693, which could exclude some important injury-
related impacts on marine mammals.
2. Question: How will the proposed change to the definition of
harassment affect scientific research and/or military readiness
activities?
Are there specific activities that might fall outside
this definition?
Answer: The proposed amendments in H.R. 2693 and the
Administration's bill will likely make the process easier for the
scientific research community. Because the proposed amendments would
raise the threshold for acts directed at marine mammals involving Level
A harassment (injury), which are permitted under Section 104 of the
MMPA, more scientific research applications will likely fall under
Level B harassment. Scientific research involving Level B harassment
would continue to be covered by the General Authorization process, a
more streamlined process than the scientific research permit process
under Section 104. Nonetheless, these amendments would still enable the
agency to keep track of the effects of scientific research on marine
mammals.
The amendments will likely clarify for the regulated community,
including the Department of Defense, when their acts constitute
harassment and when they do not. They will clarify that Level B
harassment means those acts that are likely to have biologically
significant, harmful effects on marine mammals rather than those that
have de minimus effects.
By amending the definition of harassment, activities that
potentially could have very minor incidental behavioral effects on
marine mammals (e.g., kayakers and scientists using low intensity
sonars and other instruments to map the surface of the sea floor or
water current characteristics) should fall outside the definition,
depending on circumstances such as duration of the activity and
location of its occurrence.
3. Question: The definition for Level A (potential to injure)
harassment proposed in H.R. 2693 requires that an activity have ``the
probability to injure'' a marine mammal. It seems to me that this
change would require a higher burden of proof for a given activity's
likelihood of causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals? Does the word
``probability'' have a clear and commonly understood legal definition?
What is the distinction from ``potential?'' Would the addition of a
modifier that explains the relative probability of injury (such as 20%,
50%, 90%) be helpful in clarifying the intent of the word
``probability?''
Answer: This language could result in less protection for marine
mammals. The word ``probability'' implies that a particular outcome has
a greater chance of happening than not (i.e., greater than 50%
likelihood of occurring), which may result in too high a threshold for
an activity involving injury to constitute harassment.
``Probability'' is not a term that is currently in the MMPA.
Therefore, there is no useful legal reference for that term as it
relates to the MMPA. In addition, the term ``potential'' is only used
in the harassment definition of the MMPA, and it is not defined in the
MMPA. Therefore, there is no clear definition of that term in the MMPA,
and there is no ability to compare how it is used elsewhere in a
similar context.
Thus, a court would likely look to the ordinary meaning of the word
as it appears in the dictionary. Webster's New International
Dictionary, 2nd ed., unabridged, offers two definitions of
``probability'' that are relevant to its application in the harassment
definition: 1) The quality or state of being probable (probable means
having more evidence for than against; supported by evidence strong
enough to establish presumption, but not proof, of its truth);
reasonable ground for presuming; true, real, or likely to occur,
likelihood; and 2) That which is or appears probable.
Since ``probability'' means that a particular outcome has a greater
chance of happening than not, in this case it would mean that those
acts that have a greater than 50% of causing injury to marine mammals
would constitute Level A harassment.
Webster's defines ``potential'' as ``that which is possible.''
Thus, it includes everything that's probable/likely (i.e., more
evidence for than against) plus things that are not probable/likely.
The only thing excluded from ``potential'' is that which is not
possible at all. The phrase, ``potential to injure,'' in the harassment
definition implies that any act that has greater than a 0% chance of
causing injury could constitute Level A harassment.
While the threshold for Level A harassment using the term
``potential'' is likely too low, the threshold using the term
``probability'' is likely too high to protect marine mammals from
injury. The agencies looked at a range of options in developing the
Administration bill to clarify that the appropriate threshold for an
act to constitute Level A harassment was somewhere in between
``probability to injure'' and ``potential to injure.'' Ultimately, the
Administration decided that ``significant potential to injure''
achieved the appropriate balance to allow the agencies to address acts
involving injury.
Adding a fixed percentage to the definition to qualify the word
``probability'' may result in an inflexible burden on the agency given
the difficulties in determining with what degree of likelihood an act
will cause injury. For instance, if Level A harassment only applied
when an act had a greater than 30% chance of causing injury, the agency
would be forced to prove that an act had more than a 30% chance of
causing injury before it could address the action. This would be
difficult given the level of uncertainty that currently exists
regarding the impacts of various human activities, especially those
activities for which research has been limited.
Permitting for Scientific Research:
1. Question: Has the permitting process for targeted scientific
research on marine mammals and oceanographic research that falls into
the incidental take (Level B) category been sufficiently streamlined as
a result of the 1994 amendments? What additional changes, either
legislative or regulatory, are necessary? Are there still problems with
the permitting process for targeted research on marine mammals that
falls into the Level A (probability to injure) category?
Answer: On the first question, yes, the General Authorization for
Scientific Research has worked well. Authorizations (Letters of
Confirmation) have been issued, on average (1999-2002), within 33 days
of the time a letter of intent is considered complete.
NOAA Fisheries does not feel that legislative or regulatory changes
for targeted scientific research on marine mammals are necessary at
this time. As stated in our oral testimony for the July 24, 2003 MMPA
hearing, our challenges in scientific research permitting are
fundamentally linked to NEPA and ESA and our fiscal and human resource
constraints, and not to limitations inherent in the MMPA.
There is not a problem with the MMPA or the regulatory process
regarding scientific research permits involving Level A harassment.
Most applications for permits under the MMPA are processed within 90
days. This period includes a mandatory 30-day public comment period.
Some delays in processing applications for permits have occurred;
however, this has usually been for those applications also involving
endangered or threatened species--for which an ESA permit is also
required--and for which substantial NEPA analyses were necessary due to
the complex or controversial nature of the research.
2. Question: How do overlapping requirements under the Endangered
Species Act and NEPA interact with permitting requirements under the
MMPA? What could be done to further streamline the process or
coordinate timetables when a proposed project involves a threatened or
endangered species? Would moving the NEPA requirement earlier in the
permitting process help to expedite the final awarding of a permit? Why
or why not? Would conducting programmatic NEPA reviews in various
categories of frequent permit applications be helpful in eliminating
individual NEPA requirements on each application?
Answer: There are separate requirements under the three Acts, but
NOAA Fisheries has streamlined the permit process by issuing joint
MMPA/ESA permits and by conducting simultaneous environmental analyses
under ESA and NEPA.
Moving the NEPA requirement earlier in the permitting process would
not help expedite the process. Under existing regulations, the NEPA
requirement is already at the front end of the process, even before
publication of the Notice of Receipt of the application in the Federal
Register, in part to meet the MMPA requirement to make a permit
decision within 30 days of the close of the public comment period.
However, no matter where it goes in the process, it can be time and
resource consuming because of the often complex nature of the analyses
required, especially for endangered or threatened species.
Conducting programmatic NEPA reviews would help NOAA Fisheries
streamline the NEPA process. The agency is proceeding with development
of programmatic NEPA documents that will help front-load and streamline
the process. For example, we are currently working on contracting out a
programmatic NEPA analysis to investigate the effects of scientific
research involving active acoustics. We have identified the need for a
number of such programmatic documents, which will take several years to
complete.
3. Question: It is clear to me from the testimony that we have
heard today that the permitting process for scientific research is
still problematic for many scientists, but I am still not clear on the
root cause of the problem.
Is the permitting process severely limited by a lack of
resources and staff?
Would the development of a classification system
identifying specific activities and their associated risk to marine
mammals be a more useful approach to expedite consideration of
different types of activities on a more programmatic basis?
Answer: Yes. Resource and staff limitations can delay the timing of
permit issuance, particularly given the current level of applications
for research on endangered and threatened species and the NEPA and ESA
Section 7 analyses that are required for those permits. In addition,
because there is not a permit application cycle (unlike the typical
grant process), applications are received throughout the year, which
makes planning for and completing the necessary NEPA and ESA analyses
problematic.
There is currently such a classification system in place.
Activities that have the potential to disturb but not injure a marine
mammal or marine mammal stock in the wild (Level B harassment) are
covered by the General Authorization, an expedited process for
researchers to obtain an authorization for research activities.
Alternatively, researchers can obtain a scientific research permit for
those activities that have the potential to injure a marine mammal or
marine mammal stock in the wild (Level A harassment). In addition, we
have begun to conduct programmatic NEPA and ESA analyses for certain
categories of actions. Therefore, future permit applications involving
only those activities would have a reduced processing time, as the NEPA
and ESA analyses would already be essentially completed or would
require only streamlined supplemental analyses.
A more specific classification system detailing activities could be
difficult especially since the risk and impact associated with many
human activities is unknown. The system currently in place is
preferable because since it is based on impacts on the marine mammal--
either injury or disturbance--it is flexible enough to adapt to changes
in scientific information. For instance, as more information becomes
available on the nature of a given activity and its impacts, then more
is known about where that activity fits on the scale of injury,
disturbance, and negligible impact.
Take Reduction Teams:
1. Question: A new World Wildlife Fund study released in June
conducted by American and Scottish biologists suggests that accidental
capture or ``bycatch'' by the fishing industry may be the biggest
immediate threat the survival of some marine mammals, especially large
whales. This study analyzed bycatch mortality affecting 125 marine
mammal populations over the period of 1990-1999. The study estimates
that 1000 whales, dolphins, and porpoises drown every day. Annually,
approximately 308,000 marine mammals die unintentionally.
In light of this information, what conclusions can be
drawn about the effectiveness of the Section 118 take reduction team
process?
Should specific types of fishing gear be permanently
retired due to their associated level of bycatch?
Should a robust program be established to dedicate
adequate resources and technical assistance to promote ``marine mammal
safe'' fishing gear?
Answer: The WWF study calculates an annual level of marine mammal
bycatch occurring on a global basis, not a national basis. Most
countries are not bound by the same statutory requirements as the U.S.
to reduce marine mammal bycatch to biologically and socially acceptable
levels. Interestingly, the study found that bycatch of cetaceans
declined significantly during the period 1995-1999, as compared to
1990-1994. Inasmuch as fishing effort did not decrease during this
period, the authors conclude that these reductions are likely
attributable to the take reduction measures adopted pursuant to the
1994 MMPA amendments.
MMPA Section 118 provides a sound framework in which to address
marine mammal bycatch concerns. While mortality and serious injury of
marine mammals incidental to fishing continues to be a problematic
source of marine mammal mortality nationwide, NOAA Fisheries has
achieved many bycatch reduction successes as a result of the take
reduction team (TRT) and take reduction plan (TRP) development process
outlined in Section 118 of the MMPA. Namely, the Pacific Offshore
Cetacean Take Reduction Plan (POCTRP) has successfully reduced bycatch
of beaked whales, pilot whales, pygmy sperm whales, sperm whales, and
humpback whales in the swordfish/shark drift gillnet fishery off
California and Oregon. The POCTRP has achieved the MMPA's short-term
goal of reducing incidental takes below the potential biological
removal (PBR) level for all species covered under the Plan and has
further reduced takes of some marine mammal stocks to below 10% of the
PBR level (which is the level that NOAA Fisheries currently uses in its
Stock Assessment Reports to determine whether the total fishery-related
mortality and serious injury level for the stock can be considered to
be insignificant and approaching a zero mortality and serious injury
rate). Additionally, take reduction plans (TRPs) in the Gulf of Maine
and Mid-Atlantic have successfully reduced bycatch of harbor porpoise
to levels below the stock's PBR. NOAA has also experienced management
challenges related to preventing entanglement of large whales in the
Atlantic in certain gear types. We are currently working closely with
the ALWTRP to develop viable alternatives to address these challenges
and feel that Section 118 provides an effective framework in which to
meet these challenges.
NOAA Fisheries plans to implement a final TRP for Western North
Atlantic coastal bottlenose dolphins in early 2004. Modeling efforts
show that the anticipated management measures will reduce incidental
serious injury and mortality of bottlenose dolphins to levels below the
stock's PBR. Over the next several years, NOAA Fisheries plans to
convene TRTs to address bycatch of common dolphins and pilot whales in
Atlantic longline and trawl fisheries. Thus, the agency has plans to
address the instances in which incidental mortality and serious injury
of marine mammals exceed PBR for a particular stock.
While Section 118 has provided a sound framework in which to
address these issues in a stakeholder-inclusive process, there are
still improvements that can be made in the program itself. We encourage
Members of Congress to consider amendments to Section 118 proposed in
the Administration bill that would include non-commercial fisheries
that have frequent or occasional incidental serious injury or mortality
of marine mammals in the TRT and TRP development process, as well as
other amendments aimed at providing monitoring alternatives and gear
innovation initiatives.
The requirements under Section 118 of the MMPA provide an adequate
framework to address a variety of management challenges related to
marine mammal interactions with fishing gear. The TRT and TRP
development processes have allowed NOAA Fisheries to reduce marine
mammal bycatch in gillnets, traps, and pots. The agency has plans to
address marine mammal bycatch in pound nets, haul seines, longlines,
and trawl gear via future TRTs and TRP development. The challenge is
finding the right combination of management measures, and enforcement
and monitoring capability, to achieve success. Section 118 provides
adequate flexibility for the agency to consider a broad range of
management measures, including closed areas, gear modifications, gear
restrictions, and acoustic deterrent requirements, to meet the bycatch
reduction goals of the Act. NOAA Fisheries is also working to reduce
overcapitalization in U.S. fisheries, which should help eliminate
excess fishing capacity, and thus gear, in some areas.
A program dedicated to researching and developing gear that reduces
interactions with marine mammals would be helpful and would aid the
agency in fulfilling the complex task of promoting fishing on the one
hand, as a requirement under the Magnuson-Stevens Fishery Conservation
and Management Act, and reducing the mortality and serious injury of
marine mammals incidental to fishing gear on the other, pursuant to the
MMPA. In fact, NOAA Fisheries' Pascagoula Lab has a dedicated gear
research program that looks at modifying gear to reduce various types
of bycatch.
The Administration MMPA reauthorization bill currently contains
amendments (see Section 516) that would direct the Secretary of
Commerce to establish a fishing gear research and development program
aimed at evaluating and developing new gear technologies to reduce
mortality and serious injury of marine mammals incidental to fishing.
These amendments also authorize the Secretary of Commerce to establish
a fishing gear buyback program through the take reduction plan
development process, to work with other countries to foster gear
technology transfer initiatives aimed at reducing marine mammal
bycatch, and to establish a gear research mini grant program to promote
the evaluation and development of fishing gear innovations.
2. Question: H.R. 2693 would extend the deadlines imposed on take
reduction teams and the agency for requirements under section 118, the
taking of marine mammals incidental to commercial fishing operations.
Have these extensions been requested by the agency?
Have take reduction teams been unable to meet these
deadlines in the past?
Answer: NOAA Fisheries did not request these deadlines, and these
extensions are not included in the Administration bill. However, the
amended deadlines proposed in H.R. 2693 are more achievable than the
current statutory deadlines in Section 118 and we do not expect that
they would substantially compromise marine mammal protections.
While the agency has done its best to meet Section 118 deadlines in
the past, it is often challenging to meet them given the various steps
required throughout the TRP development process including, completing
and analyzing stock abundance and mortality data, recruiting TRT
members, holding TRT meetings, allowing the TRT time to submit a draft
plan, developing proposed regulations, holding a public comment period,
and finalizing regulations. Additionally, the agency must comply with
NEPA and ESA requirements, among other requirements that apply to
regulatory actions, and must work with the fishery management councils
and state fisheries agencies to ensure that all the regulations
coincide to meet a variety of statutory mandates. Another complicating
factor is that this process is conducted in an environment in which
data continually change and new data needs emerge.
Stock Assessments:
1. Question: Why have stock assessments not been completed for all
stocks of marine mammals? What is the limiting factor? How adequate are
existing population estimates?
Answer: Stock assessments have been completed for all population
stocks of marine mammals that occur regularly in the EEZ of the United
States; however, they have not been completed for the marine mammals
that inhabit the EEZ of U.S. Territories in the Caribbean Sea or
Pacific Ocean. Highest priorities have been assigned to the collection
of assessment information to sustain the regime to govern interactions
between marine mammals and commercial fishing operations and on those
stocks where immediate threats are substantial and immediate. Thus, for
some stocks (e.g., Right whales in the Western North Atlantic, Gulf of
Maine harbor porpoise, Cook Inlet beluga whales, and Hawaiian monk
seals), assessment information is relatively accurate, precise, and
frequent. For other stocks (e.g., ice seals, which include ringed,
spotted, bearded, and ribbon seals; all cetaceans in the EEZ around the
Hawaiian Islands; and beaked whales, which are widely distributed and
behave in such a way that assessment is difficult (dive deep and often;
occur singly or in very small groups)), assessment information is
incomplete.
Staff, available platforms (e.g., survey vessels), and funding
limit our ability to assess marine mammal stocks. In some cases,
technology to detect marine mammals that are not readily visible at the
surface is not available. NOAA Fisheries continues to explore ways to
improve its assessment technologies. The agency's FY 04 budget request
consisted of $14,200 K for marine mammal stock assessments.
In many cases, existing population estimates are sufficient to
address fundamental questions, such as whether or not human caused
mortality exceeds sustainable limits (i.e., Potential Biological
Removal levels). In other cases (e.g, short and long-finned pilot
whales in the Atlantic Ocean), abundance estimates are not high enough
to rule out human-caused mortality as a threat to the population;
however, many of the affected marine mammal populations that would fit
this situation are widely distributed in an ocean basin, and
comprehensive abundance estimates would be exceedingly expensive.
Currently, NOAA Fisheries has a limited understanding of the
relative impacts of ecosystem processes other than direct-human caused
mortality on stock abundance and status. We are currently engaged in a
Stock Assessment Improvement Plan that will help the agency investigate
a broad range of factors, including natural ecosystem processes,
affecting stock abundance.
Zero Mortality Rate Goal:
1. Question: Robert Zuanich testified that the marine mammals hold
a loftier status than all other animals in the ocean. Wasn't this at
least, in part, the goal of the protective approach of the MMPA? Can
you comment on whether the zero mortality rate goal should be retained?
What is its relation to the precautionary philosophy of the MMPA?
Answer: MMPA Section 2, the Findings and Declaration of Policy
section, expresses the importance of marine mammals and goals for their
protection relative to optimum sustainable population and the carrying
capacity of their habitat. In addition, specific sections of the MMPA
reflect these goals.
For example, the zero mortality rate goal (ZMRG) of the MMPA
provides that commercial fisheries shall reduce the incidental
mortality and serious injury of marine mammals to insignificant levels
approaching a zero mortality and serious injury rate within seven years
of enactment of Section 118 of the statute. This requirement
demonstrates the highly protected status of marine mammals and sets a
high standard for management policies designed to protect marine
mammals.
The ZMRG has been a concept within the MMPA since its enactment in
1972. In 1994, the MMPA was amended to specify a specific date (April
30, 2001) by which the ZMRG would be achieved. Congress may want to
examine the role of the specific date by which the ZMRG was to have
been achieved and evaluate whether or not a specific date is helpful.
Reasonable evidence will be necessary to support any determination
that a fishery has achieved ZMRG. Such evidence will be difficult and
expensive to attain since as mortality becomes lower, the statistical
precision of mortality estimates will decrease for a given level of
effort (e.g., observer coverage). To detect the continued reduction in
mortality and serious injury rates as incidental mortality becomes a
small part of each stock's Potential Biological Removal level will be
difficult and will require substantial resources.
Harvest management agreements with Alaskan natives:
1. Question: H.R. 2693 does not revise Section 119 of the current
law, which establishes the authority for marine mammal cooperative
agreements in Alaska. The administration's draft bill would change the
cooperative agreements to harvest management agreements.
Can you elaborate on why this change is important? Do
native Alaskans have sufficient capabilities to support and train
enforcement operations for effective co-management? Should future co-
management agreements with native Alaskans apply to species or stocks
that are already designated as strategic or depleted? Is it likely or
desirable for seals, currently under NOAA Fisheries' jurisdiction, that
are used for subsistence to be managed under the U.S. Fish and Wildlife
Service so that all species that Alaska Natives use for subsistence
purposes will be under one agency?
Answer: The Administration's proposed amendments to this section
are important because subsistence harvest of marine mammals by Alaska
Natives is not currently subject to regulation unless a marine mammal
stock is designated as depleted. Additionally, there is no provision
for enforcing harvest restrictions that may be established in
cooperative agreements other than through voluntary compliance. The
amendments contained in Section 201 of the Administration bill would
allow for joint regulation of subsistence harvests prior to a depletion
finding. This would provide a mechanism for Alaska Natives and NOAA
Fisheries to prevent stock depletion before it becomes a more difficult
and costly problem.
Alaska Native local governments have the ability to develop and
train staff for enforcement operations; however, such co-management
operations are not always realized due to a variety of factors. Native
governments address such issues reasonably where resources are
available, such as for the enforcement of whaling ordinances by the
Alaska Eskimo Whaling Commission, which has local government support.
Proposed section 119A would allow the Federal government to work
with Alaska Natives, through co-management agreements, to effectively
regulate subsistence harvest of stocks whether or not the stock is
depleted. This would provide an additional process to regulate
subsistence harvest of depleted stocks. The proposed section is not
meant to replace existing provisions for depleted stocks; rather, it is
meant to supplement regulatory authority through the co-management
process.
We do not feel it is necessary or wise to transfer authority for
management of seals to the U.S. Fish and Wildlife Service. NOAA
Fisheries houses the majority of the technical expertise and
institutional infrastructure for addressing seals. The management of
seals could be compromised if such a transfer were to occur at this
time.
Threats to Marine Mammals:
1. Question: Commercial fishermen rightly criticize Federal
regulators for going after them and not global shipping lines to reduce
marine mammal mortality.
What is the administration doing to engage the
International Maritime Organization to reduce ship strikes in the U.S.
EEZ and across the world's oceans?
Answer: NOAA Fisheries has a program to reduce ship strikes that
has been ongoing over the last decade and has been expanded in recent
years as ship strikes continue. The agency has focused most of its
efforts to reduce ship - marine mammal interactions to date on the
North Atlantic right whale, due to its critically endangered status,
its particular vulnerability to ship strikes, and Congressional and
public interest. Efforts to address ship strikes of right whales are
believed to provide ancillary benefits to other marine mammals and to
serve as a template to address the issue more broadly with other marine
mammals.
Recognizing that ship strikes account for more right whale
mortalities than entanglements in fishing gear or any other human-
related activity, NOAA Fisheries formed an internal working group in
late 2001 and began a proactive approach to address the issue of ship
strikes. This process culminated in the development of a Ship Strike
Reduction Strategy, a proposed multi-year blueprint of the specific
steps that could be taken to reduce or eliminate the threat of ship
strikes. Measures proposed in the Strategy would reduce the overlap of
ships and whales to reduce the likelihood of ship strikes. This
approach allows for consideration of regional differences in
oceanography, commercial ship traffic patterns, and navigational
concerns. Since interagency collaboration is key to the Strategy's
success, NOAA Fisheries recently established an Interagency Working
Group on the Reduction of Ship Strikes to Right Whales to aid in the
Strategy's implementation and enforcement. The purpose of this Working
Group is to review and provide comments on the Strategy, provide
clearance on two proposed international measures, assist NOAA in
identifying means to ensure the implementation of a robust Strategy,
and establish a timeline. Actions needed to execute the overall project
include rulemaking, various analyses, and international action.
NOAA Fisheries plans to seek approval from the International
Maritime Organization (IMO) for implementation of any of the proposed
measures within the Strategy that would require international action.
The IMO is already engaged in the right whale-ship strike issue through
the recent actions of Canada to change its shipping lanes to help
reduce ship strikes of right whales. After a four-year collaborative
process involving Transport Canada, the federal Habitat Stewardship
Program, industry, and conservation/research organizations, the IMO
approved the proposal to alter shipping lanes in the Bay of Fundy in
2002.
Similar changes are sought for right whale protection under the
NOAA Fisheries Ship Strike Strategy. The Strategy proposes measures
that would apply to the entire eastern seaboard, and thus are
significantly more complex than those facing Canada in the localized
area of the Bay of Fundy. Recognizing that interagency collaboration is
key for the success of the Strategy, NOAA Fisheries is currently
engaged in the interagency process to begin implementation of the
Strategy. After an interagency task force has been formed to address
this issue, NOAA Fisheries anticipates engagement with the IMO to
address the Ship Strike Strategy.
2. Question: There seem to be many emerging threats to marine
mammals that were not considered 25 years ago, when the original act
was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals? Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action? Would
such an undertaking be within the scope and purview of the MMC?
Answer: The Marine Mammal Commission currently reports on emerging
and existing threats to marine mammals and on the agencies' (U.S. FWS
and NOAA Fisheries) efforts to address these threats. During the first
week in August 2003, the Commission convened a workshop of scientists
and some managers to discuss future research and scientific needs for
marine mammals and the ecosystems upon which they depend. Presumably,
the report of this workshop will characterize research and information
needs within the context of existing and emerging threats. Therefore, a
special report may not be necessary; however, if such a report is
necessary, the Marine Mammal Commission has the responsibility and the
capability to compile one.
This undertaking would be within the scope of the Marine Mammal
Commission's responsibilities under the MMPA, and they have already
performed it to a certain extent in their annual reports to Congress
and in specialized reports that the Commission produces.
At least some aspects of such an undertaking could also be within
the purview of the three regional Scientific Review Groups established
under section 117(d) of the MMPA.
3. Question: Has the MMC ever investigated the growing incidence of
ship strikes? MMC-directed, Would the MMC support a mandate to convene
a panel to recommend steps to reduce ship strikes and report to
Congress in 2 years?
Answer: NOAA Fisheries defers to MMC for the response to this
question.
4. Question: Should there be a similar directed program on ocean
noise that would be mandated under the MMC or another program such as
the National Oceanographic Partnership Program?
Answer: It would be useful for the Marine Mammal Commission (MMC)
or the National Oceanographic Partnership Program (NOPP) to convene
panels of experts to further explore the issue of ocean noise and the
MMC or NOPP could make recommendations related to the protection and
conservation of marine mammals. However, neither the MMC nor the NOPP
is the appropriate entity to run a program or to assign national
priorities for the study or management of ocean noise because neither
has management responsibility for marine resources. NOAA has
responsibility for the evaluation and management of ocean noise in
terms of its effects on living marine resources, such as marine
mammals, as well as other natural marine resources, such as benthic
habitats. The agency already runs a program on ocean noise and sets
priorities based on its mandates under the MMPA, ESA, and other
statutes. In addition, NOAA coordinates on a regular basis with the
USFWS, Minerals Management Service, Department of Defense, MMC, and
NOPP.
5. Question: Two programs currently exist to respond quickly to
threats to marine mammals. These include the Prescott Marine Mammal
Rescue Assistance Grant Program and the Marine Mammal Health and
Stranding Response Program, both authorized under Title IV of the MMPA.
I have heard that these programs need increased funding.
Would you agree?
Would it be helpful for NOAA Fisheries if the
administration of Prescott grants were transferred to an outside group,
such as the National Fish and Wildlife Foundation? Would this be a
cost-effective way to free up biologists to do other important work?
Answer: As mentioned, there are two emergency response funds
available under the Marine Mammal Health and Stranding Response
Program: the Marine Mammal Unusual Mortality Event Fund (called the
Contingency Fund), which provides funds for the responses to designated
unusual mortality events, and the emergency response funds under the
Prescott grant program. The Contingency Fund was initially authorized
for $500,000 in 1993 and was intended to be able to solicit additional
funding from outside sources or donations. In 1999, NOAA Fisheries
started setting aside $125,000 per year for this fund from operational
funds, and these funds were transferred to the National Fish and
Wildlife Foundation (NFWF). The current administrative costs for the
fund are 3% per year and no solicitations for outside funding have been
made. NOAA Fisheries staff provide all the coordination, review the
reimbursement applications, monitor the response, and maintain current
financial records for all potential recipients. During that time we
have responded to several marine mammal die-offs and spent $216,389 on
reimbursements to the network. The current balance in the account is
$266,311 and there are four die-offs for which requests for
reimbursement have not been received. There have been some problems in
the reimbursements for die-off investigations. In the 1999-2000 die-off
of gray whales along the west coast, the Contingency fund was
restricted from reimbursing for the significant carcass disposal costs,
and therefore many animals could not be necropsied. This significantly
hampered the investigation. In addition, small stranding network
organizations often cannot pay for costs upfront without overwhelming
the financial status of the organization.
The network would be able to respond to the mortality events more
efficiently if there were more flexibility in how the money could be
spent and if some costs could be paid in real time rather than as a
reimbursement.
For the Prescott emergency fund, NOAA Fisheries has made available
$600,000 out of funds appropriated for this assistance program and
three emergency grant applications have been received, totaling
$230,000.
At this time there would be no benefit to recipients in moving the
whole program to NFWF and such a move would not necessarily free up
biologists to do other important work. Currently NOAA Fisheries
biologists are involved in the development of the request for
proposals, which includes developing funding priorities, the review
process (merit review), and monitoring of the facilities and
organizations. Regardless of the grants administration process, NOAA
Fisheries staff must oversee the network, coordinate activities of the
network and work in partnership with the network and other scientists
to implement the Marine Mammal Health and Stranding Response Program.
NOAA Fisheries biologists will continue to be needed to set priorities,
review applications, and coordinate the Prescott funded work with other
portions of the stranding program. There is a real benefit to having
all aspects of the program described in Title IV coordinated by NOAA
Fisheries staff into an integrated program. If the grants
administration were transferred to NFWF, it would still have to involve
NOAA Fisheries' biologists in the development of the solicitation and
the review of applications. In addition, NFWF administrative fees are
higher than what is currently allowed in the legislation.
In the future, with NOAA's streamlining of the grants
administration process and Prescott program's solicitation of proposals
earlier in the year, we anticipate an improvement in the time it takes
to get funds to recipients.
Captive Animal Welfare:
1. Question: The 1994 changes to the Marine Mammal Protection Act
gave APHIS the authority for captive marine mammal welfare inspections.
Has APHIS demonstrated requisite expertise and ability to
inspect and oversee marine mammals in captivity?
How many inspectors does APHIS deploy to inspect display
facilities?
To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such
standards been provided to the public?
Is there any oversight or reporting requirements for
APHIS in the discharge of this responsibility? Should APHIS be required
to report annually to Congress?
Answer: NOAA Fisheries does not have authority to participate in or
review APHIS' inspections or oversight of marine mammals in captivity.
Therefore, NOAA Fisheries has no basis to determine whether APHIS has
demonstrated the requisite expertise and ability in these areas.
NOAA Fisheries does not know how many inspectors APHIS deploys to
inspect facilities, and defers the response to this question to APHIS
or the MMC.
Marine mammals are specifically addressed in 9 CFR Part 3, Subpart
E, specifications for the Humane Handling, Care, Treatment, and
Transportation of Marine Mammals, which was promulgated under the
Animal Welfare Act (AWA). APHIS conducted negotiated rulemaking with
stakeholders to revise these regulations and published a final rule
with resulting revisions at 66 FR 239, January 3, 2001. APHIS is
considering amendments to the regulations at 9 CFR Part 3, Subpart E to
address the items that were not previously agreed to during the
negotiated rulemaking process as well as standards for marine mammals
used in interactive programs (i.e., ``swim-with-dolphin'' programs) see
APHIS' advance notice of proposed rulemaking at 67 FR 37731, May 20,
2002. NOAA Fisheries respectfully suggests that requests for details
regarding these rulemaking processes should be addressed to APHIS.
NOAA Fisheries is currently unaware of any reporting requirements
for APHIS related to the MMPA or AWA. NOAA Fisheries defers to APHIS
and the MMC to respond to this question.
2. Question: The public display community has complained that NOAA
Fisheries deliberately misinterpreted the intent of Congress in 1994 in
its promulgation of regulations regarding permits allowing the
transport and exchange of captive marine mammals.
Is this complaint valid?
If not, what aspect of the proposed regulations should be
revised?
Answer: The complaint is not valid. The proposed rule does not
require permits for transport/transfer (including exports) of legally
held captive marine mammals in U.S. facilities. The rights of legal
holders of captive marine mammals are currently described in the MMPA
and the proposed rule only provides a process through which holders can
exercise their rights by meeting the requirements of the MMPA.
Recently, holders of exported marine mammals that were loaned or leased
to foreign facilities experienced problems in reasserting custody of
the animals so that they could be returned to the U.S. or found that
the foreign facility no longer met standards comparable to the MMPA or
Animal Welfare Act. NOAA Fisheries' current policy is the best
mechanism currently available for allowing the U.S. government to
request the appropriate foreign agency to intercede on behalf of the
U.S. and the holder to insure that these standards are met. The export
procedures in the proposed rule were intended to codify this policy and
address these kinds of situations for the benefit of the marine mammals
and their U.S. holders. Permits are still required for capture from the
wild and first-time imports into the U.S. consistent with the MMPA.
There are some needed clarifications that were identified during
review of the public comments received on the proposed rule. In
particular, these include specifying the need and purpose of
inspections (for inventory verifications only), and clarifying or re-
proposing the export provisions of the proposed rule.
Captive release prohibition:
1. Question: H.R. 2693 includes a prohibition on releasing captive
marine mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
Answer: This provision would not affect the release of pilot whales
in question. The prohibition on releasing captive marine mammals back
to the wild without a scientific research permit is specifically
directed at animals held at public display or scientific research
facilities, including those born at the facilities or long-term captive
animals. It does not include stranded animals or those in
rehabilitation because it provides an exception for animals maintained
in captivity under MMPA Section 109(h).
We recognize the limited resources and facilities available to
respond to and care for stranded marine mammals. The release of
rehabilitated stranded marine mammals is still governed by the
provisions of section 109(h) of the MMPA and the implementing
regulations. The primary goal of any rescue and rehabilitation program
authorized under the MMPA is to return stranded animals back to their
natural habitat as long as their health allows it. Otherwise, animals
are euthanized or placed permanently in captivity. However, these
latter options are only exercised when the animal's health and chances
of survival are compromised by releasing it back to the wild.
This provision would require a permit for release of a marine
mammal by a U.S. citizen on the high seas, but not inside the country's
territorial sea. The Administration is currently examining the issue
regarding whether the MMPA applies in other countries' EEZs. However,
Keiko was being held captive in Iceland when he was released. NOAA
Fisheries worked with the Government of Iceland to encourage them to
adopt protocols for Keiko's release similar to those involved in
issuing NOAA Fisheries permits.
______
Response to questions from The Honorable Frank Pallone, Jr., submitted
for the record by Karen Steuer, National Environmental Trust
Definition of harassment:
1. Over the past year, Congress has been presented with several
different options to re-define the definition of harassment. A new
definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
On May 6 the Resources Committee held a hearing on changes proposed
to the MMPA by the Department of Defense, among them a change to the
definition of harassment. During that hearing, I noted that any
problems with the existing harassment definition are not due to
ambiguities in the statutory language, but to fundamental process
problems, including: inconsistency in reviews of permit applications,
conflicts in the process that dovetails the MMPA with the National
Environmental Policy Act, and a lack of cooperation among federal
agencies. If the problem lies in process issues that go uncorrected,
changing the definition is likely to result only in more confusion,
more delays in granting permits, and more lawsuits. Nothing will be
gained, and marine mammal conservation will undoubtedly suffer as a
result. Any definition--whether the language is that proposed by DOD,
the Administration, or in H.R. 2693--should take this into
consideration.
All the definition proposed to date use ambiguous language that is
unlikely to correct current perceived problems. Such terms as
``significantly altered'' and ``abandoned,'' (Administration proposal)
or ``biologically significant disruption'' (H.R. 2693) will result in
even more confusion and even more legal action, since their meaning
varies from species to species and from behavior to behavior.
Like all the other definitions proposed to date, the definition
proposed by H.R. 2693 considerably weakens the existing standard, and
creates confusion as to application to various activities. By applying
one standard to Level A and two different standards to Level B, the
bill creates three different standards, all of which are ambiguously
defined without any clarification as to which standards would apply to
whom and under what circumstances.
Regarding Level B harassment, H.R. 2693 first requires a
``biologically significant'' disruption of activities, including, but
not limited to, migration, breeding, care of young, predator avoidance,
defense, or feeding. The legislation does not define the term
``biologically significant disruption,'' nor is it a commonly used
scientific term. .'' The insertion of this term would add harmful and
unnecessary ambiguity to the definition, increasing regulatory
uncertainty for regulated entities, and potential risk for protected
marine mammals.
The bill would then add the Administration's proposed third tier of
harassment to include activities ``directed toward'' a specific animal
or group of animals and ``likely to impact'' those animals by
``disrupting behavior''. While I recognize the intent in using this
tier to regulate activities such as dolphin feeding, as currently
written this definition could also apply to scientific research and
whale watching operations. To make matters more confusing, the
permitting standard included in this provision of ``disrupting
behavior'' differs from the standard included in the other section of
Level B harassment, which requires a ``biologically significant
disruption.''
2. How will the proposed change to the definition of harassment
affect scientific research and/or military readiness activities?
Please see the response above regarding some of the implications
for scientific research by use of the term ``directed activities.''
Regarding scientific research, it is important to recognize that
there are some types of research that are likely to be harmful to
marine mammals. Geologic surveys, for example, use air gun arrays which
blast very loud sounds into the ocean bed. Under these circumstances, a
general authorization for research, as has been proposed by some in the
research community, would be unwise unless accompanied by very specific
standards and clarifications as to which research activities would be
covered.
It should also be noted that many of the difficulties encountered
by research permit applicants are not due to the language of the MMPA,
but to requirements under the ESA and NEPA. Testimony presented before
the Committee on Resources on July 24 clarified this critical point:
research on highly endangered species is subject to more scrutiny than
that on other marine mammals--as it should be.
Regarding military readiness, I see no reason why the military
should be held to a lower standard than any other American. DOD has
never been denied a permit or incidental take authorization by NMFS. In
Congressional testimony the Navy has frequently referred to fictitious
situations that have no bearing on the actual language or the agency's
interpretation of the law. The often-used scenario in which a naval
vessel is prevented from leaving the harbor because a sea lion on the
neighboring beach will turn its head to watch the boat simply bears no
resemblance to the type of activity that NMFS actually regulates.
Typical of these activities are missile firings, which cause pinnipeds
hauled out on nearby rocks and beaches to stampede, killing their pups;
and ship-shock tests, which involve detonations of thousands of pounds
of high explosives. NMFS has never required a permit of an activity
that merely caused a sea lion to turn its head.
Changing the current permitting process by instituting programmatic
reviews of military activities could be extremely helpful. Planned
activities could be reviewed by region and timing as to possible
impacts on marine mammals, and mitigated appropriately. This approach
would not require any legislative changes.
Are there specific activities that might fall outside
this definition?
Given the lack of clarification as to the new terms proposed for
both Level A and Level B, I think it is quite likely that some
activities could fall outside this definition. For example, where does
shipping traffic fit? Oil and gas exploration? Until the terms are
defined, it is impossible to determine whether some previously
regulated activities might go unregulated.
3. The definition for Level A (potential to injure) harassment
proposed in H.R. 2693 requires that an activity have ``the probability
to injure'' a marine mammal. It seems to me that this change would
require a higher burden of proof for a given activity's likelihood of
causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals?
Does the word ``probability'' have a clear and commonly
understood legal definition? What is the distinction from
``potential?''
I agree that this change would require a far higher burden of proof
than that which currently exists. The term ``potential'' is clear and
requires no further evaluation of the probability of injury, whereas
``probability'' is undefined, subjective, and likely to result in
confusion among potential permittees. An example of the inherent
difficulty with the ``probability'' would be the issue of ships
entering Boston Harbor, transiting a National Marine Sanctuary and
habitat for a number of endangered or threatened large whales. Evidence
shows that ships entering Boston do occasionally strike and kill
whales: the potential for ship strike is clear, and dictates that
preventative measures should be mandated to the extent practicable. But
the probability of an individual ship striking and injuring a whale
varies tremendously, depending on season, ship speed, number of ships
entering the harbor on any given day, and other factors. It would be
virtually impossible to determine or enforce, resulting in even more
confusion among stakeholders.
It is critical to recognize that all of these terms are subjective.
At the Subcommittee hearing on July 24, Congressman Abercrombie
expressed his view that the insertion of the term ``likely'' would
clarify the proposed definition, as in ``likely to injure''. Yet
``likely'' can easily be construed to be the same standard as
``probably'', creating similar confusion to that noted in the previous
paragraph.
Would the addition of a modifier that explains the
relative probability of an injury (such as 20%, 50%, 90%) be helpful in
clarifying the intent of the word ``probability?''
Marine mammal biology and habitat use would make the use of such a
calculation impractical in broad legislative terms. For example: a
vessel entering the shipping lanes in the Great South Channel (off
Rhode Island) in late fall or early spring has a very high
``probability'' of encountering and possibly striking feeding right
whales. However, in most years the probability lessens at other times
of the year when right whales either move south to breed or north to
feed, although the potential still exists. This scenario is further
complicated when variations in the North Atlantic due to weather
patterns result in changes in plankton production, which also result in
changes in right whale behavior patterns.
It might be more practical to consider incorporating the use of
relative probability modifiers in developing regulations to apply to
various activities that affect marine mammal behavior.
Threats to Marine Mammals:
1. There seem to be many emerging threats to marine mammals that
were not considered 25 years ago, when the original act was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
Yes, such a report could be useful in determining future direction
for legislative and regulatory action, and particularly for deciding
priorities for appropriations. However, it may be more efficient in
terms of time and effort to have the MMC work on this report in
consultation with the Scientific Committee of the International Whaling
Commission (IWC). Every year the IWC Scientific Committee brings
together many of the best marine mammal scientists in the world to
discuss research needs, results of previous research, and
recommendations for future efforts on the most important issues
affecting cetaceans on a global scale. The Committee and its various
subcommittees and working groups address, inter alia, climate change,
habitat protection, whale watching, bycatch, and competition with
fisheries. The report and recommendations of the Scientific Committee
are then taken into account by the 39 member nations of the IWC when
making policy decisions.
The current chair of the Scientific Committee is Dr. Douglas
DeMaster from NMFS' Seattle lab, and he could certainly provide the MMC
with advice on current global trends in cetacean threats and research.
Is it practical to believe that we can address all these
threats, and if so, what threats should be priorities for action?
It is not practical for the U.S. to believe that it can address all
these threats unilaterally, since most have impacts on migratory marine
mammals and require international cooperation. Certainly the most
immediate priority for action should be international bycatch, or
incidental take, of marine mammals in commercial fishing operations--
now recognized as the single largest threat to the survival of many
marine mammal populations, and particularly of small whales and
dolphins. The most recent estimate of global incidental takes, as
reported to the IWC Scientific Committee at its 2003 meeting, is that
as many as 750,000 marine mammals are killed annually in fishing
operations.
This might include identifying data gaps, coming up with research
plans and evaluating the health of marine mammal stocks in the wild as
relates to other environmental parameters.
Would such an undertaking be within the scope and purview
of the MMC?
As noted above, I would recommend that this effort be undertaken in
consultation with the IWC Scientific Committee.
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
It is my understanding that NMFS has undertaken an internal review
of the needed steps as part of the North Atlantic Right Whale Recovery
Plan; the draft of that plan has not yet been made public for review.
Given that the Right Whale Recovery Team has been discussing this issue
and recommended actions for years, I would not recommend convening
another panel to produce yet another report. NMFS should be mandated to
undertake immediate actions to reduce ships strikes based on the work
and recommendations made to date.
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
The National Research Council has already convened panels and
produced reports on ocean noise and its effects on marine mammals. I
would recommend that prior to mandating another program, the
recommendations within those reports be taken into account.
Captive release prohibition:
H.R. 2693 includes a prohibition on releasing captive marine
mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
This is unlikely. Limited space dictates that animals should be
released as soon as practicable, and current law and regulations
require that the holder of a marine mammal apply for a permit to keep
it indefinitely. The prohibition on release would change none of the
requirements.
Would this provision affect the NOAA Fisheries' release
of the five pilot whales that were stranded on April 18, 2003?
I am unfamiliar with the circumstances, and do not know if the
release prohibition would have affected these animals.
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway?)
It is my understanding that, as currently written, the phrase ``any
person subject to the jurisdiction of the United States'' would apply
to all U.S. citizens regardless of the location of the release.
However, the bill should clarify the language to ensure that any such
permit requirement is subject to the same jurisdictional and public
review requirements that apply to other MMPA permits.
______
Response to questions submitted for the record by Peter L. Tyack,
Biology Department, Woods Hole Oceanographic Institution.
Questions from Chairman Wayne Gilchrest
1. The Marine Mammal Protection Coalition, a group of environmental
groups, has proposed adding the word ``foraging'' to the definition of
level B harassment. Is it necessary to include this term when
``feeding'' is already included? Is this term easily defined for all
marine mammals? Which would you describe--feeding or foraging--as more
biologically significant in terms of behaviors of marine mammals that
should be listed in the definition of harassment?
My dictionary defines ``forage'' as ``a search for food or
provisions''. ``Feed'' is defined as ``to eat'' or more generally ``to
provide something necessary for the growth, development, or existence
of.'' It can be very difficult to define when a marine mammal is
searching for food as opposed to travel for other purposes. By
contrast, the act of eating is obvious. Therefore, I believe that the
act of feeding is more easily defined for all marine mammals than
``foraging.''
While searching for food is part of the foraging process, the more
critical issue for biological significance seems to me to be did the
animal get the food it needed for growth and development. Therefore,
while adding ``foraging'' is a broader and perhaps more protective
definition, the ``feeding'' definition is closer to the intention of
focusing on the biologically significant aspects of the activity as
opposed to all parts of the process.
2. The Marine Mammal Protection Coalition also includes
``communication'' in their definition. Can you give an assessment on
the inclusion of this behavior? Did the NRC discuss this behavior when
determining behavior to be included in the NRC recommended definition?
This question parallels the last one. Communication can play an
important role in feeding, in care of young, predator defense, or
mating. Most of my own research focuses on communication, and I believe
it to be a fascinating and important subject. However, it is not en end
in itself from an evolutionary perspective. The NRC committees
discussed communication extensively, but I do not remember whether they
specifically discussed whether communication in general be included in
the list. I think not, because the NRC list is selected by contrast to
highlight behavioral categories that are inherently essential for
growth, survival, and reproduction.
I hope an example might help highlight the critical issues. When
humpback whales are exposed to the sounds of LFA sonar, their songs
become longer and more redundant. This may represent a mechanism to
compensate for increased noise, much as we speak differently on a
walkie talkie than in person. Similarly, shipping noise increases the
ambient noise, and whales may compensate by increasing the loudness of
their vocalizations, much as we speak more loudly in a cocktail party
or on the subway. I think that the critical issue for regulation is not
whether the details of the communication signal changed, but rather
whether the communicative exchange was disrupted. If the effective
range of a mating signal is reduced from 100 mi to 1 mi in the presence
of shipping noise, and if this means that males and females cannot get
together for mating, that is a serious problem for the population. On
the other hand, if animals show statistically significant changes in
their signals in the presence of noise, but these changes are what
allows animals to compensate for the noise, then this may not
automatically qualify as harassment.
3. The NRC definition of harassment did not include ``sheltering''.
Since you were involved with the NRC panel that recommended the
proposed definition, can you explain why ``sheltering'' was not
included?
The NRC National Academy of Sciences second report (2000) on Marine
Mammals and Low Frequency Sound specifically addressed this question:
The Committee suggests limiting the definition to functional
categories of activity likely to influence survival or
reproduction. Thus, the term ``sheltering'' that is included in
the existing definition is both too vague and unmeasurable to
be considered with these other functional categories.'' (p. 69)
4. The NRC definition of harassment did not include ``surfacing'',
which is contained in the Administration's definition. The current MMPA
definition contains ``breathing''. Was there a reason why the NRC did
not include either of these behaviors?
Many earlier studies of ``harassment'' counted blows or timed
surfacing of marine mammals, testing for statistical significance of
differences in control vs disturbed settings. This is the classic
example where studies need to change to focus on biological
significance vs statistical significance. Surfacing and breathing were
chosen because they were easy to measure, not because the studies could
evaluate the functional significance of disruption. Clearly breathing
at the surface is a critical behavior. However, any acute effects
caused by a disturbance preventing an animal from surfacing to breathe
should be viewed in terms of injury or lethal take, not just disruption
of behavior. I would have to strain to find an example where disruption
of breathing would have a biologically significant behavioral effect
with no physiological injury. On the other hand, animals may modify
their surfacing behavior to adapt to changing circumstances in ways
that may not pose any risk of harm.
5. The Marine Mammal Commission had some concerns with certain
words contained in the level B definition of harassment in H.R. 2693,
specifically ``care of young, predator avoidance, defense'' saying that
these terms are not very precise and without clarification could lead
to implementation difficulties and possibly lawsuits. Why did the NRC
recommend these biological activities and can they be defined?
The NRC selected these activities precisely because they identify
some of the critical behavioral functions that if disrupted would
prevent animals from meeting critical goals. The distinguished panel of
biologists on the NRC panel challenged the term ``sheltering''
precisely because it was ``too vague and unmeasurable to be considered
with these other functional categories.'' It can be more difficult to
give an operational description of a functional category than a purely
descriptive one, but the NRC panel carefully and intentionally made the
list a functional one to highlight that this list was closely tied to
the concept of biological significance. The House committee will simply
have to decide whether they consider an expert panel of outside experts
selected by the National Academy of Sciences to be more or less
competent than the Marine Mammal Commission in making decisions about
scientific precision.
6. The current definition of level B harassment has ``nursing'' as
a listed behavior. However, the NRC recommended ``care of young''. Why
was this change recommended? What other activities fall under ``care of
young'' that may not be covered under ``nursing''?
I consider ``nursing'' to be imprecise and ambiguous. It could be
taken to be restricted to suckling the young, or might more broadly be
interpreted as providing care to the young in general. The NRC panel
chose to be more precise in making the definition a broader more
functional one. For example, newborn whales cannot swim as well as the
mother. They often position themselves to take advantage of the
slipstream of the mother. If a mother's swimming behavior were
disrupted and the calf could not keep up with her, then this would be
likely more threatening than a brief hiatus of suckling.
7. What are some of the factors Congress should consider when
crafting a final harassment definition?
The goal of the definition should be to include any non-lethal
effect that might pose adverse impacts to marine mammals, while
clarifying the exclusion of minor effects with negligible impact. The
definition must also decide and define what level of probability for
the effect would trigger regulation. I personally believe that few of
the problems identified with the definition will be resolved simply by
redefinition. This definition falls under the prohibition on taking
whales, a prohibition that is ignored for most takes by most human
activities. Problems of cumulative effects of lots of ``takes'' simply
cannot be regulated effectively using a prohibition. Congress should
consider other regulatory mechanisms for dealing with this kind of
habitat degradation, much as we deal with the effects of small levels
of chemical contaminants with humans. We use criminal penalties to deal
with poisoning, but regulatory solutions to deal with chronic effects
of everyday exposure that might pose long term risks.
8. How do we incorporate the level of current scientific knowledge
about how marine mammals may be injured and at the same time protect
animals from injuries we have not yet been able to measure?
At its most basic, this is a question about the appropriate balance
between being precautionary and practical. It cannot be answered in
black and white. If injury is defined as a detrimental physiological
change, we can never prove absence of injury. Nor can we prohibit all
seagoing activities on the basis of an unknown potential to injure.
However this is an academic question, far removed from the urgent
needs of conserving whales today. Right now, we know that some
populations such as right whales of the NW Atlantic are threatened with
extinction because they are killed by vessel collision. We know exactly
how these animals are killed by ships, and we know that this level of
mortality is likely to make the difference between survival and
extinction of the right whale. At its most basic, we know that keeping
lethal ships away from whales can solve the problem, albeit at great
cost. Yet NMFS has done nothing to regulate shipping to reduce, much
less eliminate the risk.
In terms of effects of noise, we are at the opposite end of this
spectrum. Scientists can measure subtle, fully recoverable changes in
hearing after noise exposure. We humans have these temporary shifts in
our ability to hear (TTS) every time we go on a loud subway or plane,
or go to a rock concert. These subtle changes clearly identify levels
of sound that could, after repeated exposure, cause more permanent
injury. As we humans age, these exposures couple with the natural aging
process so that our hearing sensitivity decreases with age. Yet there
has been heated debate about whether these painless reversible changes
constitute injury itself for marine mammals. This kind of sophistry
will not protect real marine mammals in the real world. The NRC report
specifically recommends the following de minimis standard for level A
acoustic harassment: ``any sound that produces a TTS of 10 dB or less
in exposure episodes that are separated by non-exposure intervals that
are ample to allow full recovery (at least 24 hours) does not
constitute a major risk to the auditory system of a marine mammal.''
(NRC 2000; p 68) This is designed as a highly conservative scientific
standard that is safe in the face of most reasonable uncertainty.
9. In the definition of Level B harassment, does it make sense to
qualify the activity (i.e. biologically significant activities,
including, but not limited to, migration, breeding..) or the effect
(biologically significant disruption of behaviors) in Level B
harassment? Why or why not?
The NRC qualified both the disruption and the activity:
``meaningful disruption of biologically significant activities.'' I
think that the main reason they did not suggest ``biologically
significant disruption of biologically significant activities'' is the
copy editing motive of not being so repetitive. If one had to choose
either the effect or the activity, I believe that it makes more sense
to qualify the effect, especially if the list of activities is chosen
to emphasize functional categories selected for their inherent
biological significance. If the disruption is biologically significant,
then clearly the activity that was disrupted must also be. On the other
hand, it is certainly possible to have trivial disruptions of
biologically significant activities.
10. Which is the more scientifically used term--``biologically
significant activity'' or ``biologically significant disruption''?
Should either of these terms be defined in H.R. 2693?
The phrase ``biological significance'' has been developed by
scientists dealing with environmental issues, similar to the concept of
``adverse impact'', or ``injury'' and ``disease,'' in medical science.
The main reference book on Marine Mammals and Noise has an entire
chapter on ``significance of responses and noise impacts.'' This
chapter uses the concept of biological significance for the actual
disruption response rather than for the activity. I personally agree
with this usage: if one must choose whether to apply ``biological
significance'' to disruption or activity, the best choice is to qualify
the effect ``biologically significant disruption.''
It would be extremely useful for the MMPA to define its usage of
``biological significance.'' In my opinion, the same definition could
be applied to both the disruption and the activity.
Questions from The Honorable Frank Pallone, Jr.
Definition of harassment:
1. Over the past year, Congress has been presented with several
different options to re-define the definition of harassment. A new
definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
The current definition of level B harassment in the MMPA is:
``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.''
The 1994 NRC report on Low Frequency Sound and Marine Mammals
succinctly reviewed the problem of how harassment has been interpreted
under the MMPA:
Logically, the term harassment would refer to a human action
that causes an adverse effect on the well-being of an
individual animal or (potentially) a population of animals.
However, ``the term ``harass'' has been interpreted through
practice to include any action that results in an observable
change in the behavior of a marine mammal ``.'' (Swartz and
Hofman, 1991). (p. 27)
The 1994 NRC report goes on to note that many minor and short-term
behavioral responses of marine mammals to manmade stimuli are simply
part of their normal behavioral repertoire. There is clearly a need for
some standard of negligible effect, below which a change in behavior is
not considered harassment.
The change in the definition of level B harassment proposed by the
Administration and in H.R. 1835 is:
``disturbs or is likely to disturb a marine mammal or marine
mammal stock in the wild by causing disruption of natural
behavior 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.''
As a biologist who has studied the behavior of marine mammals for
more than 25 years, I find this wording confusing, and I do not see how
it addresses the problem identified by the NRC. The last phrase added
to the definition does add a criterion of significant alteration.
However the point of the NRC reports was biological significance, a
disruption that could have an adverse impact. My dictionary defines
significant as ``likely to have influence or effect.'' The addition of
the word ``significant'' in the new definition therefore does not give
the same standard as suggested by the NRC. As our techniques to study
marine mammals have grown in sophistication and sensitivity, it is now
possible to demonstrate statistically significant alerting or orienting
responses that in my opinion fall well below the negligible impact
standard.
I find the addition of the word ``abandoned'' particularly
confusing in the new definition. It certainly makes sense to add a
criterion for abandonment of critical habitat, but what does this
wording mean for behavior patterns? A sperm whale or elephant seal can
dive for an hour or more, but any marine mammal that abandons surfacing
behavior cannot breathe. If it abandons surfacing for more than a few
hours, it is certainly dead. If a sperm whale group is sheltering a
young calf from a killer whale attack, even a momentary abandonment of
the behavior could be lethal. Calves may be able to survive for days or
weeks if their mother abandons nursing, and many whales could survive
for years without feeding, but what is the time period implied by
``abandon.'' My understanding of ``abandon'' is that it means a
permanent change. By this definition, the ``abandonment'' wording turns
level B harassment into a lethal take. Far from distinguishing
negligible from potentially significant effects, it muddies the waters
further.
Another problem with the use of the term ``abandon'' is that I take
it to mean ``giving up''--a 100% cessation of an activity. Yet since
the definition of harassment also applies to stocks, this definition is
not conservative enough for actions that may affect a large portion of
a stock. For example, suppose an activity caused a 50% reduction in
foraging rates in a majority of the population, or caused animals to be
50% as effective in finding a mate for breeding. Such reductions would
not ``alter'' the form of the behavior, nor would they meet an
abandonment criterion, but few populations could sustain such changes
on a long term basis.
I support the definition of harassment proposed for section
3(18)(A) (i) and (ii) in section 13 of H.R. 2693. The definition in
section (ii) closely follows the NRC definition. The primary difference
is the replacement of ``meaningful'' as a modifier for disruption with
``biologically significant'' and deleting the phrase ``biologically
significant'' from the modifier for the kinds of activities. I believe
that this follows closely the meaning of the definition written by the
NRC committee.
I am, however, very concerned that the harassment definition
proposed for section (iii) retains the problematic old harassment
definition for activities directed at marine mammals, including
scientific research directed at marine mammals. While there is a
process to permit such research, retaining the old definition for
activities directed at marine mammals will hold scientific research
that enhances the survival or recovery of species or stocks to a
stricter standard than activities that harm marine mammals and do not
help them. This does not make sense. The only case that in my opinion
justifies a lower level of regulation involves takes for scientific
research that enhances the survival or recovery of species or stocks.
The proposed changes in the definition of harassment for activities
directed at marine mammals will perversely have the opposite effect.
NMFS has suggested retaining the old harassment definition for
activities directed at marine mammals so that they can more easily
prosecute cases against businesses such as those that charge tourists
to swim with wild dolphins. I believe that any of the proposed
harassment definitions fit very well these cases where people
intentionally pursue marine mammals and annoy them with clear
disruption of behavioral patterns. It is particularly strange that NMFS
suggests retaining the old broad definition, when a senior NMFS
enforcement attorney stated to the 2002 Annual Meeting of the Marine
Mammal Commission ``the potential to disrupt behavioral patterns, at
one level, it is a great definition because you go out, you know, we
can get whatever we want because it is a very broad definition, but
when you get down to the prosecution level, it is too broad.''
The real problem with harassment in my opinion is that NMFS has not
shown the will to enforce the prohibition against harassment and to
prosecute cases against growing industries based upon harassing marine
mammals in the wild. It would be a tragedy for scientific research to
be excluded from corrections in the definition of harassment as cover
for NMFS' unwillingness to enforce the prohibition against harassment.
If the definition of harassment causes problems with prosecution
against commercial activities directed at marine mammals, which I
contest, then the solution should be limited to this narrow situation
and should be worded so as not to impact research directed at marine
mammals. If the problem for NMFS is prosecuting cases where commercial
enterprises are feeding wild marine mammals or taking customers to swim
with them, I suggest that the solution is a ban on these activities.
Such a ban would serve the interests of protecting the public as well
as the animals.
I would like to take this opportunity to reiterate the suggestion
of the National Academy of Sciences second report (2000) on Marine
Mammals and Low Frequency Sound on the definition of level B
harassment:
``NMFS should promulgate uniform regulations based on their
potential for a biologically significant impact on marine
mammals. Thus, level B harassment should be redefined as
follows:
LLevel B--has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing meaningful
disruption of biologically significant activities, including,
but not limited to, migration, breeding, care of young,
predator avoidance or defense, and feeding.
The Committee suggests limiting the definition to functional
categories of activity likely to influence survival or
reproduction. Thus, the term ``sheltering'' that is included in
the existing definition is both too vague and unmeasurable to
be considered with these other functional categories.'' (p. 69)
This definition was written by scientists. Since ``meaningful
disruption'' is not defined, and since ``biologically significant'' has
a more specific meaning to biologists, I have no problem with the minor
changes in wording proposed in H.R. 2693 to fit legal and legislative
requirements. It would be helpful to define ``biological significance''
in this amendment of the MMPA.
The definition of harassment must take into account our lack of
knowledge about the ways in which behavioral changes may influence
marine mammals. For example, prolonged or repeated harassment may lead
to physiological changes that do not qualify as injury, but that may
indicate the potential for adverse effects. Prolonged changes in
behavior that are outside of the normal behavioral repertoire of a
species may also trigger concern even if the effect on health is not
immediately obvious. But if the definition of harassment is to be
changed, the primary focus should be on biological significance in a
way that clarifies the need for a negligible impact standard. I do not
think that the changes proposed by the Administration, in H.R. 1588 and
in H.R. 1835 for the definition of harassment succeed in this task, but
I support the definition of harassment in (18)(A)(ii) of section 13 of
H.R. 2963, which closely follows that suggested by the National
Research Council in any amendments to the MMPA.
2. How will the proposed change to the definition of harassment
affect scientific research and/or military readiness activities?
Since the new definition retains the old version for activities
directed at marine mammals, I do not think it will improve the
situation for marine mammal research. Both military training and other
forms of scientific research that may incidentally take marine mammals
will have improvements in the definition and in the language for
authorizing incidental takes. I believe that the modifications in the
authorization language are much more important than the changes in the
definition.
Are there specific activities that might fall outside
this definition?
The activities that apply for scientific research permits are
directed at marine mammals. Therefore the proposed change in the
definition of harassment retains the problematic old harassment
definition for activities directed at marine mammals, including
scientific research directed at marine mammals. While there is a
process to permit such research, retaining the old definition for
activities directed at marine mammals will hold scientific research
that enhances the survival or recovery of species or stocks to a
stricter standard than activities that harm marine mammals and do not
help them. This is perverse. The only case that in my opinion justifies
a lower level of regulation involves takes for scientific research that
enhances the survival or recovery of species or stocks. The proposed
changes in the definition of harassment for activities directed at
marine mammals will have the opposite effect.
If NMFS supports this ``directed'' language to facilitate
prosecution against swim programs with wild marine mammals etc, then I
suggest the inclusion of a prohibition on swimming with or feeding wild
marine mammals. This is important to protect both wild animals and also
humans.
3. The definition for Level A (potential to injure) harassment
proposed in H.R. 2693 requires that an activity have ``the probability
to injure'' a marine mammal. It seems to me that this change would
require a higher burden of proof for a given activity's likelihood of
causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals?
One could view the suggested initial phrases in the definitions of
level A or B harassment as lying on a continuum of probability:
Potential (>0) more than a remote possibility (>1) significant
potential (??) probable, likely (>50%)
The term ``potential'' has been interpreted as such a vanishingly
small probability that I think it is open to abuse. However, this does
not mean that one must swing all the way to ``probable'' or ``likely''
both of which I take to mean >50% chance of occurring.
Does the word ``probability'' have a clear and commonly
understood legal definition? What is the distinction from ``potential?"
I am not a lawyer, so I cannot answer this personally. However, I
can offer this advice. The noise issue is very similar to effects of
toxic compounds on humans. I suggest that the Committee staff research
the case law and legislative language for toxicology to suggest an
appropriate language for the intended level of probability.
Would the addition of a modifier that explains the
relative probability of injury (such as 20%, 50%, 90%) be helpful in
clarifying the intent of the word ``probability?"
Absolutely. As a quantitative scientist, I can only look with
wonder at all the misunderstandings when words are used to describe
numbers. If Congress intends a specific level of probability, the only
way to prevent misinterpretation is to state the number.
4. The proposed change to the definition of Level B harassment
would require that an activity cause a ``biologically significant
disruption'' of activities including, but not limited to, migration,
breeding, care of young, predator avoidance, defense, or feeding. In
contrast, the definition proposed earlier by the NRC would require that
an activity cause a ``disruption to biologically significant''
activities.
Is this inversion of words important? Why?
I do not think this is a critical difference. The NRC said
``meaningful disruption to biologically significant activities.'' I
think the main reason the NRC did not say ``biologically significant
disruption to biologically significant activities'' was copy editing.
5. It seems to me that it would be easier to define a disruption to
a biologically significant activity than it would be to determine what
constitutes a biologically significant disruption to that activity.
If this is true, would the proposed change in the
definition make it less protective of marine mammals?
The NRC definition qualified both the disruption and the activity.
Removing either qualification would make the definition broader and
therefore, in principle, more protective. However, the point of the NRC
definition was to focus regulation on ``takes'' that might pose an
adverse impact. There are many minor changes in biologically
significant activities that would not meet this standard. The main
point of NRC was that the conservation goals of the act would be better
met if uniform regulation would target takes with the highest risk of
adverse impact. Applying the biological significance qualifier to the
disruption would achieve this goal better than applying it to the
activity.
6. How would the change in the definition of Level B (potential to
injure) harassment affect scientific permitting?
Level B involves behavioral harassment not injury, which is level
A. If this question refers to potential to injure, then I think that
the change from ``potential to injure'' to ``probability to injure''
would likely reduce the number of activities requiring a permit. My
understanding of ``probability to injure'' means more than a 50:50
chance of injuring, while ``potential to injure'' means even a remote
chance to injure. On the other hand, I doubt any marine mammal
scientist conducting research that might injure a marine mammal would
split hairs and not apply for a permit based on the difference between
``potential'' and ``probability.'' If an animal is injured in the
course of the research, the permit would be very important.
If the question refers to behavioral disruption, the change in the
definition would have next to no benefit for scientific permitting. All
research on marine mammals that is permitted is directed at them. The
H.R. 2693 definition retains the problematic definition for directed
activities, so retains a higher standard for research directed at
protecting marine mammals than activities that incidentally harm them
with no benefit. This is perverse.
7. Are there activities, such as 'sheltering' or 'resting', that
are missing from the list of ``migration, breeding, care of young,
etc.''? If so, which behaviors are missing and why are they important
to explicitly mention in the proposed definition?
Most definitions of harassment have something of a hodge-podge list
of activities, which must be why the list is qualified ``including, but
not limited to.'' The NRC list was carefully crafted to include all of
the major classes of behavior that directly impact survival, growth,
and reproduction in mammals. I do not believe that any critical classes
are missing from this list.
8. Would this revised definition still allow for the consideration
of the cumulative negative impact on an individual or population of
marine mammals?
The definition of harassment comes into play regarding the
prohibition of taking marine mammals. I cannot see how regulation and
enforcement of the prohibition on individual acts of taking is the
place to deal with cumulative impacts. NEPA analyses are the well-
tested existing method to deal with cumulative impacts. I believe that
adding a requirement for all seafaring activities to consult with NMFS
to do NEPA analyses would be the best way to address the issue raised
by this question.
9. If the consideration of small numbers and geographic area were
to be eliminated, how would this affect the ability to determine the
potential negative impact for an activity?
The critical issue for negative impact is the well established
finding of no significant impact. Whether numbers are small or area is
specified, is simply not important except to the extent necessary to
make a determination about adverse impact. To the extent this
information is used to determine the potential negative impact, it
should be required, but it need not be a separate requirement on top of
negligible impact.
10. Has NOAA Fisheries or USFWS contemplated regulating truly
incidental activities that have little if any direct effect on marine
mammals, such as boat wakes?
I am not aware of this. However, NOAA Fisheries clearly regulates
scientific research to much higher standards than other activities not
designed to benefit marine mammals. The majority of NMFS staff working
on MMPA issues, regulate research, even though this has a tiny impact
compared to other human activities.
Permitting for Scientific Research
1. Has the permitting process for targeted scientific research on
marine mammals and oceanographic research that falls into the
incidental take (Level B) category been sufficiently streamlined as a
result of the 1994 amendments?
Oceanographic research not on marine mammals is not eligible for
scientific research permits. The first NRC report on Low-Frequency
Sound and Marine Mammals recommended that research permits be made
available to a broader range of oceanographic research.
The 1994 amendments added a streamlined general authorization
process for research involving only level B takes to marine mammals
that were not endangered. My understanding is that this system works
well for this limited category. However, research on endangered
species, which is often the most critical for conservation, can be
delayed for years. The ironic situation today is the more important the
research is for conservation, the more delay in permitting.
What additional changes, either legislative or
regulatory, are necessary?
One of the simplest and most helpful changes would require NMFS to
issue permits within a fixed deadline of 3-4 months. This is compatible
with the normal planning and funding cycle for research. In general,
both research and the cause of marine mammal conservation would best be
served by uniform standards for regulating all activities, with
regulation and enforcement targeting those situations that pose the
highest risk of adverse impact.
Are there still problems with the permitting process for
targeted research on marine mammals that falls into the Level A
(probability to injure) category?
I am not aware of many applications being held up on this ground.
Obviously every vessel that maneuvers around marine mammals has a
potential to injure, so there might be potential to harass researchers
on those grounds. Luckily it has not happened yet.
2. How do overlapping requirements under the Endangered Species Act
and NEPA interact with permitting requirements under the MMPA? What
could be done to further streamline the process or coordinate
timetables when a proposed project involves a threatened or endangered
species?
ESA species trigger a section 7 consultation. When I have called
about delays in processing my permit, the personnel from the Permit
Division who I deal with often state that the permit is delayed in the
section 7 office. This office appear impervious to the urgency of
impending field seasons. It would help if the MMPA specified a
timetable for this section 7 consultation, and required the permit
office to notify the applicant when the application was sent to the
section 7 division. The applicant should have some way to obtain
compensation if either the permit division or the section 7 section did
not meet the statutory deadlines. In my experience, NMFS may not decide
whether to conduct a NEPA analysis until after receiving comments from
the Marine Mammal Commission, which is often a month or so after
submission at the earliest. An EA can take several months, and an EIS a
year or more. One way to expedite the NEPA paperwork would be to
require NMFS to develop background NEPA documentation for all research.
Then only completely new techniques would trigger these delays of a
year or more.
Would moving the NEPA requirement earlier in the
permitting process help to expedite the final awarding of a permit? Why
or why not?
Absolutely. Recent court cases have challenged NMFS' usual reliance
on a categorical exclusion from NEPA for research permits. This means
that Environmental Assessments or Impact Statements will need to be
prepared for many if not most research permits. EAs typically take
several months to complete, and EIS's often take more than a year.
Delays of a year or more will kill most research projects. Therefore
NMFS must develop a proactive strategy to meet NEPA requirements for
common research methods in advance of permit applications. They need to
advise scientists developing new methods of the requirement to prepare
new NEPA documentation if the method is not covered under existing
paperwork.
Would conducting programmatic NEPA reviews in various
categories of frequent permit applications be helpful in eliminating
individual NEPA requirements on each application?
Absolutely. I am extremely pleased at Rebecca Lent's testimony to
the committee stating that NMFS is planning to conduct programmatic
NEPA reviews. Unless Congress finds a way to reverse the higher
standards applied to research compared to activities that do not
benefit marine mammals, I believe that this is the only way for
Congress to protect marine mammal research from the crushing burdens of
time and money imposed by Federal regulation. This commitment will
require considerable funding from Congress, especially in the first few
years as NMFS must prepare the NEPA documents while continuing to
process permits.
A more ambitious approach to require uniform standards for
regulation might meet the needs of research without requiring this
extra bureaucracy. I think that Chairman Pombo was exploring this issue
in his questioning at the hearing. Most challenges under MMPA now are
procedural, so the very act of requesting a permit or authorization
triggers threats that do not exist for activities that violate the MMPA
but never ask for permission to ``take.'' If fisheries, commercial
shipping, etc were all required to adhere to the same standards as
research, I am confident that researchers would quickly find themselves
with a workable regulatory process. From my perspective, uniform
standards would also better meet the conservation goals of the Act,
than the current system of proliferating loopholes. Perhaps the best
way to achieve this would be to require each seafaring activity or user
group to consult with NMFS to perform a NEPA analysis of the risks of
adverse impact.
Section 14- Incidental Taking of Marine Mammals
1. Why does the scientific community seek a general authorization
for marine mammal research activities, in both the Level A and Level B
category?
The 1994 amendments to the MMPA created a general authorization
process for level B harassment involving non-endangered species. I am
not aware that the scientific community has requested that this be
broadened to include level A harassment. What I have supported is for a
streamlined general authorization be made available to any activity
that after NEPA analysis has been found to have a negligible impact.
2. Would the language in Sec. 14 (which provides a general
authorization for incidental take at the discretion of the Secretary)
produce the desired outcome? Do you feel that it opens an unrestricted
loophole for a variety of other activities in the ocean that may also
cause the incidental taking of a marine mammal, such as off shore oil
and gas exploration?
Under the current regime, most of the effort goes into the
mechanics of the authorization process, which is so difficult,
expensive, and restrictive, that most activities try to avoid it
altogether. As long as the new GA is restricted to activities
demonstrated to have ``negligible impact,'' I favor a streamlined
process. What is missing from section 14 is the necessary requirement
for all seagoing activities to consult with NMFS under NEPA to assess
the broad impacts of their activities. If this were added to section
14, this would redirect regulatory effort to the area where it would do
the most good. Once activities are determined to have negligible
impact, in a well-defined NEPA process, why not streamline
authorization?
Threats to Marine Mammals:
1. There seem to be many emerging threats to marine mammals that
were not considered 25 years ago, when the original act was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
There have been more than a dozen such reports. I do not believe
that we need more workshops on the problem. We require focused efforts
to suggest new regulatory mechanisms to protect marine mammals from
these more diffuse and pervasive threats, which often can better be
viewed as forms of habitat degradation rather than acute ``takes.''
Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action?
This might include identifying data gaps, coming up with research
plans and evaluating the health of marine mammal stocks in the wild as
relates to other environmental parameters.
Yes. Right now Federal actions stifle research on impacts of human
activities on marine mammals, and the worse the problem, the more
difficult it is to conduct critical research. Each of the three NRC
panels on the effects of noise on marine mammals list the same data
gaps, and suggest basically the same research. Now what is needed is a
commitment from Congress to correct the regulatory obstacles, and to
fund a research program following these suggestions. I strongly urge
Congress to request similar NRC panels on the impact of chemical
contaminants on marine mammals, and on the impact of fisheries
modifying marine ecosystems to the detriment of marine mammals. Once
these panels develop research programs, they would likely require
similar levels of funding. Prior to crises such as the Steller sea lion
or northern right whale, great progress could be made with budgets of
several million dollars per year. After this kind of crisis, costs go
up and benefits drop rapidly. One important area for Congress lies in
the decision of how to organize the research program. I favor an open
peer-reviewed process overseen by a review board of groups that fund
the science and that are concerned about the policy and regulatory
priorities.
Would such an undertaking be within the scope and purview
of the MMC?
The MMC is a small commission with primarily an oversight role. Its
primary activity is review, writing letters, and issuing a handful of
grants at about $10k apiece. It would have to be changed and expanded
considerably to take on the role of a science funding agency at a level
commensurate with the research needs. I believe that it would be more
efficient to identify an existing successful program that selects and
funds science research projects at a level of several million dollars
annually. It should also involve larger partnerships on the funding
side and on the science performer side than is common in marine mammal
research today.
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
Yes the Commission investigated the ship strike issue and David
Laist of the Marine Mammal Commission has shown a steadfast involvement
in this problem. However, this issue has moved well beyond the
government panel of experts stage. NGOs such as the International Fund
for Animal Welfare have consulted with the shipping industry in an
attempt to find workable solutions. Where Congress could help would be
to require relevant agencies to take part in this broader search for
solutions. Obvious Federal agencies include NMFS, the Coast Guard, and
any agencies involved in establishing or maintaining shipping channels.
These channels represent Federal actions that may direct ships to areas
where they may collide with whales. It would be worth inquiring whether
shipping channels go under NEPA review, and if not, why not. This is an
international problem; Congress could help by supporting international
efforts to resolve this issue, with the IMO and other organizations.
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
The group tasked with running this research program should have
demonstrated competence with the relevant administrative resources
already in place. It makes little sense to spend money duplicating
administrative overhead, especially for an organization without proven
abilities to run this kind of research program. As I mentioned above, I
do not believe the MMC is set up to run a research program on ocean
noise of the scale suggested by the NRC. By contrast, NOPP routinely
runs research programs on exactly the scale suggested by NRC. They
maintain open peer review of proposals, and have a mechanism to involve
partners from academia, government agencies, and industry. The one area
where it may need slight modification is the addition for research so
directly relating to policy, of an executive oversight board, to ensure
that the science is as focused as possible on the critical issues.
Captive release prohibition:
H.R. 2693 includes a prohibition on releasing captive marine
mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
No. H.R. 2693 allows release under sections 104 and 109 of the
MMPA. There have been irresponsible releases, and the few that have
been demonstrated to have succeeded have involved close follow through
from researchers. Release remains an experimental approach, best
permitted as a research activity.
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
I do not know
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
NMFS views research activities in territorial waters of other
countries as under the jurisdiction of other countries. However, my
understanding of the CBD vs NSF case is that if the vessel came from
the U.S. or was funded by US, requirements for permitting may extend to
the territorial seas of other countries. This is an area where Federal
courts in some districts may disagree with current NMFS policy, so the
safe approach would be to apply for the permit.
______
Response to questions submitted for the record by Randall S. Wells,
Conservation Biologist, Chicago Zoological Society, and Director,
Center for Marine Mammal and Sea Turtle Research, Mote Marine
Laboratory
Questions submitted by The Honorable Wayne Gilchrest
1) Do you think marine mammals immune systems are affected by human
activities? If so, which activities would cause such a reaction?
Yes. Research is underway to investigate relationships between
human activities and marine mammal immune system function. I am not an
immunologist, but several work in collaboration with my long-term
bottlenose dolphin research program in Sarasota Bay, Florida.
Preliminary findings indicate that declines in dolphin immune system
function are correlated with elevated concentrations of some
environmental contaminants, such as PCB's and DDT and its metabolites.
This finding is consistent with those from studies of effects of these
man-made chemicals on terrestrial mammals.
2) Is it possible to determine if a marine mammal is having
immunological effects from an activity by observing the animal?
To the best of my knowledge, the identification and measurement of
immunological effects requires collection of samples from the animal,
especially blood samples. Marine mammals such as dolphins are very
adept at hiding health problems until they become severe--an ability
that is very useful if you do not wish to appear vulnerable to a
potential predator. While at some point in the course of condition
development it may become possible to determine from observations that
a marine mammal is ill, the specific root of that illness
(immunological vs. some other cause) would likely have to be determined
through veterinary examination and sampling.
3) Can you determine such effects by taking a blood or biopsy
sample from the animal? How would taking a sample from an already
immunologically affected animal impact the animal? Would it cause any
additional harm? If so, how can we properly address this issue?
Small blood samples can be used in a variety of tests to evaluate
immune system function. The collection of blood from small cetaceans
(from a vessel in the tail flukes) is a relatively simple and straight-
forward process that should have minimal impact on the animal. The
potential impacts from the capture process itself would depend on the
species and the animal's condition. Some species, such as bottlenose
dolphins, can typically handle such activities with few if any
problems, while other dolphin and porpoise species are more highly-
strung and do not respond as well to the capture process. As an
individual's condition worsens, it should be expected to be less
tolerant of any stress that might be associated with capture. Thus,
selecting relatively hardy species for evaluation of effects of
activities/pollution on immune system function would be a reasonable
approach--balancing minimizing risk with the ability to detect
indications of immunological effects.
4) You mention reauthorizing funds for the Prescott Marine Mammal
Rescue Assistance Grant Program. Have you received grants under this
program? If so, have you had any difficulties in receiving the funds?
Has the agency been helpful to you in the grant process?
I have not personally received any grants through this program, but
in my role as Director of Mote Marine Laboratory's Center for Marine
Mammal and Sea Turtle Research, I oversee scientists who have received
such grants. They have experienced no problems in receiving the funds,
and have found the agency to be helpful in the process. This program
has been much-appreciated by the members of the stranding response
network that has been established around the country. This is a
volunteer network, with most of the resources provided by the members
themselves. Stranding response can be a very expensive operation--
federal support through the Prescott Program has been most welcome.
5) There are a number of different behavioral terms recommended by
the NRC, environmental groups, and the Administration for a revised
definition of level B harassment. Here is a list of terms used:
``breathing'' or ``surfacing''; ``feeding'' or ``foraging'';
``communication''; ``migration''; ``breeding''; ``nursing'' or ``care
of young''; ``predator avoidance'' or ``defense''; and ``sheltering''.
Can you give us your opinion on what terms are biologically significant
and should be used in a revised definition of level B harassment to
more appropriately address those activities that cause more than a
minor disturbance?
Most of these terms identify significant activities in an animal's
life. The relative importance of some of the terms may vary from
species to species (for example, a pinniped or otter on a beach is not
concerned with surfacing). A swimming and diving marine mammal must
breathe, and in order to do this it must surface. Either foraging or
feeding can be an inclusive term that summarizes the process of
searching for, capturing, handling, and consuming prey--each component
is integral to the animal meeting its energetic requirements. Of the
two, foraging might be considered the broader term, whereas feeding
often is considered in the narrower context of ingesting food.
Communication is very important among many of the cetaceans, and can be
crucial to coordination of groups. The importance of communication to
pinnipeds, sea otters, or manatees, for example, outside of breeding or
rearing contexts is less the clear. Some marine mammals migrate, while
others do not. For migratory species, successful completion of the
migration can be crucial to survival. Some of these species are pushing
energetic limits (i.e., they do not feed again until they complete the
return migration, or they need to move ahead of temperature changes)
such that disruptions to their normal migration may drain resources to
the point of compromising the animals. Breeding is absolutely necessary
to continue the species. Nursing is one aspect of care of young,
reflecting simply the nutritional requirements. Caring for young
involves more than simply providing milk for many species. Maternal
care includes protecting them from predators and other members of the
same species in some cases, and teaching them what it will take to
survive as an independent individual. For some species of dolphins,
calves will remain in their mothers' care for 3-6 years or more. With
regards to activities relative to predators, there are several
biologically important components. Predators must first be detected,
which can be done acoustically (active or passive) or visually,
depending on the habitat and the nature of the predator. The most
common marine mammal predators are large sharks, killer whales, or
polar bears. If a predator is detected, most marine mammals' first
response is to try to avoid the predator. In some cases, an active
defense might be mounted, but this depends on the relative size and
numbers of predators and marine mammals, and the nature of the habitat
and predator. I have never used the term ``sheltering'' and therefore
can not comment on the original intent of the term, nor its importance
for inclusion in the definition.
6) It has been suggested by some scientists that in order to get a
better understanding of the hearing ranges of marine mammals rarely
seen by man, that a hearing device similar to those used to test the
hearing in newborns should be used on stranded marine mammals. What are
your thoughts on this? Is this technology currently being used on
stranded marine mammals? Has it been successful in gaging the hearing
range of stranded animals? Have there been any problems using this
technology, either with the animals or getting permits to use the
device?
Given the increasing concerns about the effects of anthropogenic
sounds on marine mammals, it is crucial that hard data be gathered on
the hearing capabilities of the animals, and how these capabilities may
have changed as a result of human activities. Stranded individuals
provide some of our only access to marine mammals that inhabit deep,
offshore waters. It should be stressed that acoustic impacts are not
just limited to marine mammals rarely seen by man. More common coastal
species, such as bottlenose dolphins, are also subject to much
anthropogenic sound, through boat traffic, coastal construction, and
industrial activities. While some of the deep-water species may face
more acute trauma from sound (such as military sonars or seismic
exploration), the more subtle but chronic impacts on coastal species
must also be considered. In both cases, data on hearing capabilities
are needed, and non-invasive techniques are available to obtain the
necessary data. I have been working with colleagues from the University
of South Florida to evaluate wild bottlenose dolphin hearing
capabilities through measurements of auditory brainstem response (ABR).
This is, I believe, the technology to which you are referring. The
process involves placing 3 suction-cup-mounted electrodes on the head
and body of a dolphin (in our case, the dolphin is resting on a foam
pad on our veterinary examination boat), and then playing back a range
of sounds through another small suction cup, recording the ABR on an
attached computer. The entire process takes about 5-10 minutes, and
there have been no adverse effects on the dolphins. I do not know if
this technique has been used on stranded marine mammals, but I can
think of no reason why it should not. There is no risk to the
individual, and there is great potential for gathering information of
benefit to entire populations. We encountered no difficulties in
modifying our Level A permit to include this procedure for wild
bottlenose dolphins.
Questions submitted by The Honorable Frank Pallone, Jr.
Definition of harassment:
1. Over the past year, Congress has been presented with several
different options to redefine the definition of harassment. A new
definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
In general, I consider the definition proposed under H.R. 2693 to
be reasonable, and a significant improvement over the current
definition in the Act. It is a simplified, more direct definition that,
with slight modifications, should greatly facilitate interpretation and
enforcement. I would suggest clarifying (i) by changing it to: ``(i)
injures or has the potential to injure a marine mammal or marine mammal
stock in the wild;'' The phrase ``has the probability'' is essentially
meaningless. All actions have a probability for an effect, some low,
some high. If an activity has been demonstrated to cause injury to
marine mammals, or if such a demonstration is lacking but the activity
includes components that clearly could injure a marine mammal, and it
is likely (more than 50% probability) that marine mammals will be
exposed to this activity, then it should be considered as Level A
harassment.
2. How will the proposed change to the definition of harassment
affect scientific research and/or military readiness activities?
Are there specific activities that might fall outside
this definition?
The effectiveness of the Act is directly related to its
inclusivity. As proposed in H.R. 2693, the definition of Level A
harassment would seem to provide opportunities for exemptions of some
activities that should be of concern, but for which insufficient
evidence is available to demonstrate a ``probability to injure.''
Though I am not a legal expert, the proposed definition (with my
modifications) should cover most eventualities of concern.
3. The definition for Level A (potential to injure) harassment
proposed in H.R. 2693 requires that an activity have ``the probability
to injure'' a marine mammal. It seems to me that this change would
require a higher burden of proof for a given activity's likelihood of
causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals?
Yes, I agree that the proposed wording in H.R. 2693 would be less
protective, as it would seem to allow activities that have not yet been
demonstrated to cause harm, and for which insufficient data are
available to demonstrate a likelihood that harm would occur. The
precautionary principle should be applied, providing protection for the
animals until such time as sufficient information is available to make
an informed decision relative to risks.
Does the word ``probability'' have a clear and commonly
understood legal definition? 'What is the distinction from
``potential?"
I am not a legal expert, but it seems to me that the phrase ``has
the probability'' is essentially meaningless. All actions have a
probability for an effect, some low, some high. Without a quantitative
modifier, the term is no more clear than ``potential,'' which appears
to be used in a sense of indicating the existence of a possibility that
an impact could occur.
Would the addition of a modifier that explains the
relative probability of injury (such as 20%, 50%, 90%) be helpful in
clarifying the intent of the word ``probability?''
The inclusion of a quantitative modifier would help to clarify the
meaning of ``probability''--leading to useful distinctions between a
possibility (any probability) vs. a likelihood (more than 50%
probability). There would need to be further clarifications of how such
probabilities should be measured and expressed. For example, how would
the probability of injury be calculated for an activity that was very
likely to injure a marine mammal if it occurred within 100 meters of an
animal, but the activity is unlikely to take place within such close
range? What would happen in the case of an activity that had never been
used with marine mammals (so no information is available on the
likelihood of injury that would allow quantification of a probability),
but which will definitely occur in close proximity to marine mammals?
Would the percent probability refer to injury to any individual? I
would prefer to return to more basic language, such as: ``(i) injures
or has the potential to injure a marine mammal or marine mammal stock
in the wild;'' This language is more in accordance with the
precautionary principle, and presumably would place the burden on those
desiring to conduct an activity to collect the data demonstrating the
level of risk, before exposing the animals to the activity.
4. The proposed change to the definition of Level B harassment
would require that an activity cause a ``biologically significant
disruption'' of activities including, but not limited to, migration,
breeding, care of young, predator avoidance, defense, or feeding. In
contrast, the definition proposed earlier by the NRC would require that
an activity cause a ``disruption to biologically significant''
activities.
Is this inversion of words important? Why?
The NRC definition is much more in concordance with the
precautionary principle. It appears to presume that any disruption to a
biologically significant activity is of concern. This definition is
fairly straight-forward for enforcement action in terms of defining
harassment as any demonstrable disruption of normal activities. The
proposed definition in H.R. 2693 would require clear definitions of
what constituted ``biologically significant'' disruption before
enforcement action could be taken. This is a less conservative
approach, providing reduced protection for the animals.
5. It seems to me that it would be easier to define a disruption to
a biologically significant activity than it would be to determine what
constitutes a biologically significant disruption to that activity.
If this is true, would the proposed change in the
definition make it less protective of marine mammals?
As I indicated in response to the previous question, I agree. The
proposed change in H.R. 2693 would make the Act less protective.
6. How would the change in the definition of Level B (I assume you
mean Level A?) (potential to injure) harassment affect scientific
permitting?
I do not foresee any major changes to the permitting process for
scientific activities with the potential for injury.
7. Are there activities, such as 'sheltering' or 'resting', that
are missing from the list of ``migration, breeding, care of young,
etc.''? If so, which behaviors are missing and why are they important
to explicitly mention in the proposed definition?
Marine mammals engage in a wide variety of activities, and engage
in them in a continuous string that forms their daily lives. It would
be very difficult to identify the relative importance of different
activities, because the behavioral patterns that we see are the result
of millions of years of evolution--each behavioral component is an
integral part of the whole of the animals' activity patterns that are
required for survival and continuity of the populations. While some
activities are easy to identify, others are less conducive to
definition. Thus, keeping the list open-ended is important. I would
suggest adding several terms, because they can be clearly identified:
Resting--Resting is important to all mammals, to recover from
activity. Many marine mammals rest in places where they are exposed to
human activities, so protection during this important period may be
necessary.
Socializing--Many marine mammals are very social, and periods of
intense social activity (not just breeding) are important for the
development and strengthening of social bonds and coordination of
activities (development and refining of the relationships that are
needed to facilitate coordinated feeding, for example, on fish
schools). In some species, socializing is a regular component of the
daily activity cycle. This period often includes many activities that
are very visible, such as leaping and other aerial behavior. These
behaviors attract people, and therefore may lead to the need to protect
the animals during this activity state.
Communicating--Communication is crucial for all marine mammals,
whether it be limited to breeding and calf rearing, or whether it
includes complex communication among members of large groups of the
more social species. The acoustic mode is the primary communication
means in the aquatic environment, and human activities can mask
important components of acoustic communication.
Traveling--Many marine mammals move through daily ranges. These
daily movements should be considered separately from longer-distance
migrations, but they are equally important as they get the animals
between different habitats where different activities occur.
Foraging--I would add this to feeding, as it includes the stages of
searching for prey, capturing prey, and handling prey, leading up to
ingestion--the actual act of feeding.
8. Would this revised definition still allow for the consideration
of the cumulative negative impact on an individual or population of
marine mammals?
It is not clear to me how the revised definition considers
cumulative effects. Explicit consideration of cumulative effects would
be an important advance in protection of the animals.
9. If the consideration of small numbers and geographic area were
to be eliminated, how would this affect the ability to determine the
potential negative impact for an activity?
Most marine mammal stocks are defined at least in part by
geographical criteria. It is crucial for stock assessments and
evaluation of potential Biological Removals that takes be able to be
assigned to specific stocks. It seems that elimination of consideration
of geographic area would unnecessarily complicate this process.
10. Has NOAA Fisheries or USFWS contemplated regulating truly
incidental activities that have little if any direct effect on marine
mammals, such as boat wakes?
I do not feel that I can speak to the contemplations of the
agencies.
Permitting for Scientific Research:
1. Has the permitting process for targeted scientific research on
marine mammals and oceanographic research that falls into the
incidental take (Level B) category been sufficiently streamlined as a
result of the 1994 amendments?
What additional changes, either legislative or
regulatory, are necessary?
I have not encountered any problems with obtaining scientific
research permits/authorizations for Level B activities since 1994. The
idea that researchers must put the time and effort into applying for
authorization to do what in some cases members of the general public do
without any such authorization is sometimes frustrating, especially
when the researchers likely are more aware of, and more sensitive to,
the needs of the animals than are most members of the public.
Are there still problems with the permitting process for
targeted research on marine mammals that falls into the Level A
(probability to injure) category?
I have not encountered any problems with obtaining scientific
research permits/authorizations for Level A activities since 1994.
2. How do overlapping requirements under the Endangered Species Act
and NEPA interact with permitting requirements under the MMPA? What
could be done to further streamline the process or coordinate
timetables when a proposed project involves a threatened or endangered
species?
Would moving the NEPA requirement earlier in the
permitting process help to expedite the final awarding of a permit? Why
or why not?
I have no first-hand experience with the NEPA process, and
therefore do not feel that I can comment meaningfully on this.
Would conducting programmatic NEPA reviews in various
categories of frequent permit applications be helpful in eliminating
individual NEPA requirements on each application?
This would seem to make sense, but again, I have no first-hand
experience with the NEPA process, and therefore do not feel that I can
comment meaningfully on this.
Section 14 -- Incidental Taking of Marine Mammals:
1. Why does the scientific community seek a general authorization
for marine mammal research activities, in both the Level A and Level B
category?
I am not familiar with the specific origin of this effort, but my
best guess would be that this is an effort to streamline the process of
seeking authorization for generic activities, rather than considering
separately a number of requests by individual researchers to conduct
similar research. In theory, this would reduce the workload of the
agency, and would allow researchers to better predict the probability
of implementing a research project on time.
2. Would the language in Sec. 14 (which provides a general
authorization for incidental take at the discretion of the Secretary)
produce the desired outcome? Do you feel that it opens an unrestricted
loophole for a variety of other activities in the ocean that may also
cause the incidental taking of a marine mammal, such as off shore oil
and gas exploration?
This clause has the potential to meet the presumed need, but it
does raise concerns about providing loopholes for a variety of
activities that could be authorized at the discretion o the Secretary.
The key to the effectiveness of this clause is in how it will be
determined that the generic activity ``will have a negligible impact on
such species or stock.'' If the initial process of permitting the
generic activity is one that follows the lines of permit reviews, with
public comment, then this may work. If it is simply at the discretion
of the Secretary, then it does not provide appropriate or adequate
safeguards for the animals.
Threats to Marine Mammals:
There seem to be many emerging threats to marine mammals that were
not considered 25 years ago, when the original act was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
I understand that this is in progress. The Marine Mammal Commission
just sponsored a workshop in Portland, Oregon, on future directions in
marine mammal research. The workshop was intended to identify threats
to the animals and the research needed to address these issues.
Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action?
It is essential to marine mammal conservation that we address these
threats. Though many of the threats may appear at this time to be of a
scope or nature as to be impractical to address, or incapable of being
mitigated, we should not be deterred in our efforts to begin to address
them. When the Marine Mammal Protection Act was first implemented, the
ideas that commercial whaling could be fully controlled, or fisheries
could be managed to reduce marine mammal takes without complete
closures likely also seemed impractical. We have made much progress in
30+ years under the Act, and these advances have come through the
dedicated efforts of a number of bright, capable, and creative minds.
If these same kinds of resources are directed toward the emerging
issues, then we will likely find workable solutions.
The threats that should receive immediate attention include:
1. LEnvironmental contaminants--including existing and emerging
contaminants of concern to marine mammal health and reproduction (such
as persistent organic pollutants, heavy metals, pathogens). Information
is needed on the effects of specific contaminants relative to specific
concentrations. Parallel efforts are needed to assess the risks to
specific stocks of marine mammals, and identifying mitigation measures.
2. LAnthropogenic sounds in the environment--including military,
scientific, and industrial acoustic activities, industrial noise,
shipping noise, boat traffic, and marine construction.
3. LVessel traffic--as it relates to collisions with marine mammals
and disturbance.
4. LHabitat loss and/or degradation.
5. LRecreational fishing activities.
6. LHuman interactions with wild marine mammals, including feeding
and swimming with them.
A parallel effort needs to be undertaken to determine the best
method to integrate risks from these emerging threats with
consideration of fishery takes through the Potential Biological Removal
process, to arrive at more complete and meaningful stock assessments.
Work will need to be done to begin to identify cumulative, long-term
effects of some of these threats.
This might include identifying data gaps, coming up with research
plans and evaluating the health of marine mammal stocks in the wild as
relates to other environmental parameters.
Would such an undertaking be within the scope and purview
of the MMC?
The Marine Mammal Commission (MMC) is an oversight agency, without
the resources or personnel to engage in large-scale research or
conservation action. It would seem more reasonable to task NOAA
Fisheries and the U.S. Fish and Wildlife Service with these
responsibilities, with MMC oversight.
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
The MMC has a long-standing interest in the ship strike issue and
MMC staff members have been involved in scientific publications and
other efforts to address this problem, especially as it relates to the
endangered Northern Right Whale.
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
I understand that the MMC is currently funded to hold a series of
workshops on ocean noise. The specific topics of the workshops are
currently under consideration, but will likely cover a wide range of
issues, including the acute trauma to deep-diving marine mammals
exposed to military sonar and seismic exploration, as well as the more
subtle, but chronic, and perhaps more serious effects of noise on
coastal species of marine mammals.
Captive release prohibition:
H.R. 2693 includes a prohibition on releasing captive marine
mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are he1d in captivity permanently regardless of their health
and survival?
The proposed language allows for release of captive marine mammals
under a scientific research permit. In the past, this process has
sometimes been followed voluntarily, but in other cases marine mammals
have been released without such authorization, with near-tragic
consequences. My understanding is that this language has been developed
to provide more control over future releases to ensure the welfare of
the release candidates and potential host populations, and to increase
the probability of obtaining high quality data from releases that can
inform future efforts.
My understanding is also that this prohibition does not refer to
stranded marine mammals. Determination of the releasability of stranded
marine mammals undergoing rehabilitation is based on criteria
established in a set of release guidelines prepared by NOAA Fisheries
and the U.S. Fish and Wildlife Service. There should not be any impact
on rehabilitation facilities. Accepted practice for rehabilitation of
marine mammals is to care for them in isolation from captive marine
mammals, in order to minimize the potential for transfer of disease.
Thus, stranded and captive marine mammals should be maintained in
separate pools and enclosures, with separate life support systems, and
ideally separate staff caring for them.
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
I do not believe that this provision would have affected the
release of the five stranded pilot whales, as they were not considered
captives.
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
I would defer to legal experts for interpretation relative to this
question. I would like to see such a requirement in order to provide
greater assurance that releases are conducted in the most humane
manner, optimizing the potential for gaining information.
______
Response to questions submitted for the record by Peter F. Worcester,
Ph.D., Research Oceanographer, Scripps Institution of Oceanography,
University of California, San Diego
Questions submitted by The Honorable Wayne T. Gilchrest, Chairman,
Subcommittee on Fisheries Conservation, Wildlife and Oceans
1. There have been comments made that with a revised definition of
harassment, which would create a de minimis standard, a general
authorization under section 101(a)(5) is not necessary? What are your
thoughts on this?
I believe that adoption of a revised definition of harassment that
focuses regulatory efforts on the biologically significant disruption
of behaviors critical to survival and reproduction, i.e., on adverse
impacts rather than simply on any detectable change in behavior, is the
single most important change needed in the Marine Mammal Protection Act
(MMPA).
Nonetheless, I feel that it would still be very useful to include
provision for a general authorization in the MMPA. The problem is that
oceanographers and other marine operators routinely use underwater
sound for a wide variety of important purposes. Even with a revised
definition of harassment, the MMPA would not provide explicit guidance
to govern its application to instrumentation that is in widespread and
on-going use. Without a general authorization it is conceivable that it
might be necessary to prepare Environmental Assessments for a large
fraction of oceanographic research cruises, for example, even if the
ultimate conclusions were that the activities would not result in
harassment under a revised definition. There is also no mechanism under
the MMPA for allowing for on-going activities that might have
biologically significant effects on only a small fraction of a
population, other than through exemptions that must be applied for on a
case-by-case basis. It is possible that there are activities that might
cause the biologically significant disruption of behaviors critical to
survival and reproduction for such a small fraction of the population
that these activities would have a negligible impact on the affected
species and stocks. It would therefore be helpful to modify the act to
provide for the issuance of general authorizations allowing for the use
of instrumentation that has the potential for taking by harassment in
situations in which the taking will be unintentional and will have a
negligible impact on the affected species and stocks.
2. Your research focuses on how sound travels through water at
different water temperatures. When a sound is made and it travels
through the ocean, does it travel throughout the water column or only
through certain portions? Do different sounds travel in similar ways
through the ocean? For instance, we hear a lot about sonar in the ocean
and there is a perception that the sound as it travels through the
ocean is at the same sound level as when it first was emitted from its
source. Is this true?
Sound in the ocean initially spreads out in all directions from a
source (except for special cases in which the source is specifically
designed to transmit in only certain directions). As the sound travels
to long ranges in deep water, however, it is affected by the ocean
sound channel. In the ocean the lowest sound speed typically occurs at
depths of 800 to 1000 m, with faster sound speeds above and below this
depth. Sound tends to be focused near the sound speed minimum because
sound waves are continually bent, or refracted, towards the depth with
the lowest sound speed. Sound that travels upward from a source at the
sound speed minimum is bent back towards the minimum. Similarly, sound
that travels down from the source is bent back up toward the minimum.
The result is that sound can travel long distances, cycling above and
below the sound speed minimum without hitting the seafloor or ocean
surface. The sound therefore travels throughout the water column. Sound
tends to be loudest near the depth of the sound speed minimum for a
source located near the minimum, however.
Different sounds spread out from a source in the same way. Sounds
of different frequencies are absorbed at very different rates, however.
High frequency sounds are absorbed much more rapidly than low frequency
sounds. This means that, under the same conditions, a high frequency
sound will not travel as far as a low frequency sound.
The combination of spreading and absorption mean that sound rapidly
gets weaker as it travels away from a source in the ocean. This effect
is of course familiar from every day experience, in which sounds in air
become weaker the further one is from the source. The magnitude of the
effect can be surprising, however. For the situation in which sound
spreads uniformly in all directions from a source, the sound
intensity100 m (328 feet) distant from the source is only 1/10,000 of
the sound intensity one meter from the source, for example.
Many of these questions are addressed more fully at a new web site,
entitled ``Discovery of Sound in the Sea (DOSITS),'' which is located
at http://omp.gso.uri.edu/dosits/dosits.htm. The web site has a section
on the Science of Sound in the Sea, which includes discussions of why
sound gets weaker as it moves and of how sound travels long distances
in the ocean.
3. You encountered delays in getting your permit issued. Were these
delays due to MMPA requirements or National Environmental Policy Act
requirements?
The rule-making process required to obtain a Letter of
Authorization (LOA) under the MMPA involves the complex interplay of
National Environmental Policy Act (NEPA), MMPA, and Endangered Species
Act (ESA) requirements. NEPA documents, including the Draft and Final
Environmental Impact Statements, are needed at various points in the
MMPA rule-making process, for example. A Section 7 consultation under
the ESA, involving a Biological Assessment and a Biological Opinion, is
needed before the MMPA rule-making process can be completed. It is
therefore difficult to assign the delays as due specifically to NEPA,
MMPA, or ESA requirements. It would clearly help in any event to have a
revised definition of harassment that focuses regulatory efforts on the
biologically significant disruption of behaviors critical to survival
and reproduction, i.e., on adverse impacts rather than simply on any
detectable change in behavior.
4. The bill has language to create a general authorization process
for section 101(a)(5), which allows the Secretary to issue
authorizations for incidental takings of marine mammals. Some
provisions will need to be added to this language to clarify a time
limit, reporting, monitoring and require a description of the activity
to be authorized. Can you make any recommendations for a time limit,
reporting, and monitoring requirements?
My principal concern with the language creating a general
authorization process is that I believe it is unrealistic to expect
that NOAA Fisheries could issue a general authorization and
implementing regulations within 120 days after the enactment of the
amendments. The issues involved in the impact of undersea sound on
marine mammals are complex, and considerable care and effort will be
required to ensure that the activities allowed under the general
authorization will have a negligible impact on the species or stock. A
one-year deadline for issuing a general authorization and the
associated implementing regulations might be more realistic.
It is, of course, essential that the general authorization process
be clearly defined. I am afraid that I do not feel that I can provide
useful guidance here. It might well be valuable to obtain some input
from NOAA Fisheries, as they must deal with the permitting process on a
daily basis.
Questions submitted by The Honorable Frank Pallone, Jr.
Definition of harassment
1. Over the past year, Congress has been presented with several
different options to re-define the definition of harassment. A new
definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
The appropriate definition for Level B harassment has been
discussed in three recent National Research Council reports:
National Research Council (NRC). 1994. Low-Frequency Sound
and Marine Mammals: Current Knowledge and Research Needs.
National Academy Press, Washington, D.C.
National Research Council (NRC). 2000. Marine Mammals and
Low-Frequency Sound: Progress Since 1994. National Academy
Press, Washington, D.C.
National Research Council (NRC). 2003. Ocean Noise and Marine
Mammals. National Academy Press, Washington, D.C.
All three NRC committees are in agreement that it ``does not make
sense to regulate minor changes in behavior having no adverse impact;
rather, regulations must focus on significant disruption of behaviors
critical to survival and reproduction'' (NRC, 2000). In my mind the
starting point for any discussion of an appropriate definition for
Level B harassment is therefore that offered by NRC (2000):
``Level B has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing meaningful
disruption of biologically significant activities, including,
but not limited to, migration, breeding, care of young,
predator avoidance or defense, and feeding.''
The definition of Level B harassment contained in H.R. 2693 is:
``(A) The term ``harassment'' means any act that--
(i) has the probability to injure a marine mammal or marine
mammal stock in the wild;
(ii) has the potential to disturb a marine mammal or marine
mammal stock in the wild by causing biologically significant
disruption of activities, including, but not limited to,
migration, breeding, care of young, predator avoidance,
defense, or feeding; or
(iii) is directed toward a specific individual, group, or
stock of marine mammals in the wild and is likely to impact the
individual, group, or stock of marine mammals by disrupting
behavior, including, but not limited to, migration, breeding,
care of young, predator avoidance, defense, or feeding.
(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) or (iii).''
Subparagraph (A) (ii) is very close to the NRC definition. One
difference is that H.R. 2693 replaces the phrase ``meaningful
disruption'' with ``biologically significant disruption,'' making
somewhat clearer the sense in which the disruption must be
``meaningful.'' A second difference is that H.R. 2693 replaces the
phrase ``biologically significant activities'' with ``activities,''
presumably because it is implicit that the activities must be
biologically significant if the disruption is to be biologically
significant. In my view the two definitions are consistent, although
the H.R. 2693 definition is perhaps somewhat less ambiguous.
My personal preference for the definition of Level B harassment
would be to combine the two definitions:
``(ii) is likely to disturb a marine mammal or marine mammal
stock in the wild by causing biologically significant
disruption of biologically important activities, including, but
not limited to, migration, breeding, care of young, predator
avoidance, defense, or feeding.''
The use of the word ``biologically'' may seem somewhat repetitive,
but the result is unambiguous.
Of more concern to me is Subparagraph (A) (iii) in H.R. 2693. The
reason for this is that subparagraph (A) (iii) retains the existing
standard for harassment for activities ``directed toward a specific
individual, group, or stock of marine mammals...'' The existing
standard has been interpreted to mean that any detectable change in
behavior constitutes harassment. Ironically, this standard would
presumably apply to marine mammal research, which would then be
regulated more stringently than other activities, including other
oceanographic research. I recommend that Subparagraph (A) (iii) be
deleted. If the goal is to regulate activities directed toward specific
individuals or groups of marine mammals, such as whale watching and
swimming with dolphins, the act should explicitly provide for this,
rather than defining harassment in a way that would place marine mammal
research, whale watching, and swimming with dolphins in the same
category.
2. How will the proposed change to the definition of harassment
affect scientific research and/or military readiness activities?
Are there specific activities that might fall outside
this definition?
I believe that the revised definition of Level B harassment
proposed in H.R. 2693 would facilitate the constructive use of sound in
the sea, focus regulatory efforts on activities that have biologically
significant impacts on marine mammals, and make it easier to do
important oceanographic research, while continuing to protect marine
mammals. If Subparagraph (A) (iii) were deleted, it would also make if
easier to do the research needed to improve our understanding of the
impacts of underwater sound on marine life.
3. The definition for Level A (potential to injure) harassment
proposed in H.R. 2693 requires that an activity have ``the probability
to injure'' a marine mammal. It seems to me that this change would
require a higher burden of proof for a given activity's likelihood of
causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals?
Does the word ``probability'' have a clear and commonly
understood legal definition? What is the distinction from
``potential?''
Would the addition of a modifier that explains the
relative probability of injury (such as 20%, 50%, 90%) be helpful in
clarifying the intent of the word ``probability?''
Assessing the legal definition of the word ``probability'' is
outside my area of expertise. In common English, I personally feel that
``the probability to injure'' sets a higher standard than ``the
potential to injure.'' I would tend to favor the phrase ``the
likelihood to injure,'' as being somewhere in between. I am dubious
that it will be possible to make numerical assessments of the relative
probability of injury that are scientifically meaningful in the near
term.
4. The proposed change to the definition of Level B harassment
would require that an activity cause a ``biologically significant
disruption'' of activities including, but not limited to, migration,
breeding, care of young, predator avoidance, defense, or feeding. In
contrast, the definition proposed earlier by the NRC would require that
an activity cause a ``disruption to biologically significant''
activities.
Is this inversion of words important? Why?
Please see my response to item 1.
5. It seems to me that it would be easier to define a disruption to
a biologically significant activity than it would be to determine what
constitutes a biologically significant disruption to that activity.
If this is true, would the proposed change in the
definition make it less protective of marine mammals?
Please see my response to item 1.
6. How would the change in the definition of Level B (potential to
injure) harassment affect scientific permitting?
Please see my response to item 1.
7. Are there activities, such as ``sheltering'' or ``resting'',
that are missing from the list of ``migration, breeding, care of young,
etc.?'' If so, which behaviors are missing and why are they important
to explicitly mention in the proposed definition?
Assessment of the behaviors critical to survival and reproduction
is outside the area of my expertise.
8. Would this revised definition still allow for the consideration
of the cumulative negative impact on an individual or population of
marine mammals?
The revised definition of harassment would not affect the
consideration of cumulative impacts, as cumulative impacts are
considered as part of the NEPA process.
9. If the consideration of small numbers and geographic area were
to be eliminated, how would this affect the ability to determine the
potential negative impact for an activity?
Under current law, requests for an incidental taking or harassment
authorization must apply to ``small numbers'' of marine mammals of a
species or stock, which the Secretary of Commerce must find will be
negligibly impacted by the authorized activity. Similarly, requests for
an incidental taking or harassment authorization must be for marine
mammals in a ``specified geographical region,'' which the Secretary
must find will be negligibly impacted by the authorized activity.
Until now, federal managers essentially have interpreted the
requirements for small numbers, specified geographically region, and
negligible impact as a single requirement in the authorization process
for incidental takes or harassment of marine mammals. However, recent
court decisions have called that interpretation into question and if
such a change is not made, it is conceivable there would be three
distinct and separate tests for determining takes--small numbers and
specified geographical region first, and if that test were met,
negligible impact from the take. The proposed change would prevent the
denial of research permits that might insignificantly harass large
numbers of animals or animals in more than one geographic region, while
leaving the key ``negligible impact'' test intact. The goal is to focus
our efforts to protect marine mammals on avoiding adverse impacts.
10. Has NOAA Fisheries or USFWS contemplated regulating truly
incidental activities that have little if any direct effect on marine
mammals, such as boat wakes?
This question should be directed to NOAA Fisheries and USFWS.
Permitting for Scientific Research
1. Has the permitting process for targeted scientific research on
marine mammals and oceanographic research that falls into the
incidental take (Level B) category been sufficiently streamlined as a
result of the 1994 amendments?
What additional changes, either legislative or
regulatory, are necessary?
The permitting process for scientific research on marine mammals
was streamlined as a result of the 1994 amendments by the establishment
of a Scientific Research Permit procedure for research on or directly
benefiting marine mammals. No special provision was made for other
oceanographic research, Any other scientific research affecting marine
mammals falls under the Incidental Harassment Authorization (IHA)
procedure for activities lasting less than one year or the lengthy
rule-making procedure leading to a Letter of Authorization (LOA) for
longer term activities, such as those needed for monitoring climate
change. These procedures are time consuming and burdensome at best.
The complex and lengthy permitting process under the MMPA has
become a major impediment to conducting both the research needed to
understand better the effect of human-generated sound on marine mammals
and other oceanographic research. This problem has been exacerbated in
recent months by legal decisions that could require extensive analyses
under the National Environmental Policy Act (NEPA) for any research
that may affect marine mammals, even in situations where there is
widespread agreement among federal managers and scientists that the
research activity has no potential to cause harm. In addition, the
situation is placing new burdens on the already stretched resources of
the National Marine Fisheries Service. The ocean science community is
urgently in need of a timely and predictable permitting or
authorization process that is not unnecessarily burdensome and provides
them with assurances that research will proceed in compliance with all
applicable laws, when the permit is issued.
Are there still problems with the permitting process for
targeted research on marine mammals that falls into the Level A
(probability to injure) category?
This question is outside the area of my expertise.
2. How do overlapping requirements under the Endangered Species Act
and NEPA interact with permitting requirement under the MMPA? What
could be done to further streamline the process or coordinate
timetables when a proposed project involves a threatened or endangered
species?
Would moving the NEPA requirement earlier in the
permitting process help to expedite the final awarding of a permit? Why
or why not?
Would conducting programmatic NEPA reviews in various
categories of frequent permit applications be helpful in eliminating
individual NEPA requirements on each application?
The various permitting processes under the MMPA involve the complex
interplay of NEPA, MMPA, and ESA requirements. NEPA documents are
needed at various points in the MMPA permitting process, for example.
For activities that might affect endangered species, a Section 7
consultation under the ESA, involving a Biological Assessment and a
Biological Opinion, is often needed before the MMPA permitting process
can be completed. It is difficult to assign delays in the permitting
process as due specifically to NEPA, MMPA, or ESA requirements when
they are so interrelated. I am therefore dubious that somehow moving
the NEPA requirements earlier in the permitting process would help
expedite the final awarding of a permit under the MMPA. Conducting
programmatic NEPA reviews in various categories of frequent permit
applications might well be helpful if doing so eliminated individual
NEPA requirements on each application.
Section 14 -- Incidental Taking of Marine Mammals:
1. Why does the scientific community seek a general authorization
for marine mammal research activities, in both the Level A and Level B
category?
I believe that adoption of a revised definition of Level B
harassment that focuses regulatory efforts on the biologically
significant disruption of behaviors critical to survival and
reproduction, i.e., on adverse impacts rather than simply on any
detectable change in behavior, is the single most important change
needed in the MMPA.
Nonetheless, I feel that it would still be very useful to include
provision for a general authorization in the MMPA. The problem is that
oceanographers and other marine operators routinely use underwater
sound for a wide variety of important purposes. Even with a revised
definition of harassment, the MMPA would not provide explicit guidance
to govern its application to instrumentation that is in widespread and
on-going use. Without a general authorization it is conceivable that it
might be necessary to prepare Environmental Assessments for a large
fraction of oceanographic research cruises, for example, even if the
ultimate conclusions were that the activities would not result in
harassment under a revised definition. There is also no mechanism under
the MMPA for allowing for on-going activities that might have
biologically significant effects on only a small fraction of a
population, other than through exemptions that must be applied for on a
case-by-case basis. It is possible that there are activities that might
cause the biologically significant disruption of behaviors critical to
survival and reproduction for such a small fraction of the population
that these activities would have a negligible impact on the affected
species and stocks. It would therefore be helpful to modify the act to
provide for the issuance of general authorizations allowing for the use
of instrumentation that has the potential for taking by harassment in
situations in which the taking will be unintentional and will have a
negligible impact on the affected species and stocks.
2. Would the language in Sec. 14 (which provides a general
authorization for incidental take at the discretion of the Secretary)
produce the desired outcome? Do you feel that it opens an unrestricted
loophole for a variety of other activities in the ocean that may also
cause the incidental taking of a marine mammal, such as off shore oil
and gas exploration?
As noted above, I believe that a general authorization such as that
specified in Section 14 of H.R. 2693 would be very helpful to the
scientific community. I feel that it is unrealistic to expect that NOAA
Fisheries could issue a general authorization and implementing
regulations within 120 days after the enactment of the amendments,
however. The issues involved in the impact of undersea sound on marine
mammals are complex, and considerable care and effort will be required
to ensure that the activities allowed under the general authorization
will have a negligible impact on the species or stock. A one-year
deadline for issuing a general authorization and the associated
implementing regulations might be more realistic.
Threats to Marine Mammals:
1. There seem to be many emerging threats to marine mammals that
were not considered 25 years ago, when the original act was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action?
This might include identifying data gaps, coming up with research
plans and evaluating the health of marine mammal stocks in the wild as
relates to other environmental parameters.
Would such an undertaking be within the scope and purview
of the MMC?
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
These questions should be directed to the MMC.
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
Our understanding of the effects of underwater sound on marine
mammals is discussed in the three recent NRC reports referenced above.
In its reports, the NRC makes it clear that the current understanding
of the effects of sound in the ocean on the behavior and health of
marine mammal needs to be improved. 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. It is clear that increasing our scientific understanding
would clarify and narrow the need to obtain permits and authorizations
under the MMPA, as well as making it easier for researchers to include
effective mitigation measures in their experimental plans. A robust
marine mammal research program is absolutely essential to protecting
marine mammals.
Funding and scientific leadership in this area to date has come
from the United States Navy. Over the years, the Navy has supported the
efforts of pioneers like Sam Ridgway and Ken Norris to expand the
boundaries of our knowledge about these unique animals. Today, the
Office of Naval Research maintains a substantial research program on
underwater sound and marine mammals.
I believe that an enhanced research program on the effects of
underwater sound on marine mammals is needed. It is important that this
program be independent and peer-reviewed. It should be broadly based,
with participation from funding agencies in addition to the Office of
Naval Research, including the National Science Foundation, the National
Oceanic and Atmospheric Administration (NOAA), and the Minerals
Management Service. Support from private industry and non-governmental
organizations for research managed in such a manner should be
encouraged. The National Oceanographic Partnership Program offers a
potential mechanism to bring these entities together in a process that
provides both the needed coordination and scientific independence.
Captive release prohibition:
H.R. 2693 includes a prohibition on releasing captive marine
mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
Does this provision require a U.S. citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
The issues raised by the prohibition on releasing captive marine
mammals contained in H.R. 2693 are outside the area of my expertise.
______
Response to questions submitted for the record by the
Marine Mammal Commission
Questions from Chairman Wayne Gilchrest
1. You mention in your testimony how you met with federal agencies
and affected interests and from these meetings developed a good
understanding of potential environmental threats that might be caused
by sound in the oceans. Can you go into more detail on what these
threats are?
Response: Potential threats to marine mammals caused by
anthropogenic sound in the marine environment can be categorized as
direct or indirect. Direct threats include the following:
Disruption of normal behavior--Such disruptions may be
brief in duration or may extend over long periods, thereby having more
significant consequences. If animals are disturbed once or twice at a
single site, they may leave the area temporarily. If they are disturbed
repeatedly, they may abandon the area permanently. For example, if
pinnipeds are disturbed during the reproductive season, they may
abandon primary pupping habitat. In such cases, disturbance could
reduce their reproductive success. Similarly, marine mammals may
abandon primary feeding habitat or change migratory routes, with
multiple consequences to their health and condition and, ultimately, to
their ability to survive and reproduce. We have limited ability to
predict the nature and severity of an animal's response to a particular
stimulus because it is a function not only of the perturbing activity,
but also of the animal's perception of the threat posed by that
activity.
Masking--Marine mammals use sounds for a variety of
purposes (e.g., communication, prey detection, navigation). Their
ability to do so depends on their ability to distinguish useful sounds
from background or ambient levels of noise. If anthropogenic sound
levels increase to the point that marine mammals are no longer able to
make those distinctions, then masking occurs, which may have a variety
of significant consequences.
Physiological stress and injury--If sound levels are
sufficiently intense, they may result in significant physiological
responses and injury. Such effects may result in stress and may lead to
more severe consequences if, for example, distressed animals beach
themselves. Temporary and permanent hearing threshold shifts are
examples of such stress and injury.
Death--Postmortem examinations of marine mammals that
have died from stranding on beaches--for example episodes involving
beaked whales in the Bahamas and Canary Islands--have revealed trauma
to the ears of some individual animals. Although it is not yet possible
to understand fully the sequence of events that led to their deaths,
some of these strandings have occurred following exposure to certain
types of anthropogenic sounds introduced into the marine environment.
Detrimental indirect effects may occur when anthropogenic sounds
adversely affect elements of marine ecosystems (e.g., prey) upon which
marine mammals are ecologically dependent. Scientists are just
beginning to study the potential effects of sound on other marine
vertebrates and invertebrates, and it is premature to characterize the
risks to them.
2. How soon will you determine whether or not you will need to
charter the group holding the meetings as a federal advisory committee?
Response: The Commission has worked with the U.S. Institute for
Environmental Conflict Resolution to procure facilitation services from
Suzanne Orenstein, Lee Langstaff, and Linda Manning. The team will be
assessing the situation by interviewing people who represent diverse
interests on the effects of sound in the ocean on marine mammals. The
purpose of the assessment is to determine the likelihood of a
successful policy dialogue and the format that such a dialogue should
take, assuming we pursue one. The consultants completed their
assessment in December and the Commission has chartered the advisory
committee. The Commission will continue to provide Congress with
periodic updates on the progress being made on the project.
3. What interest groups will you have participating in these
workshops or as a member of the advisory committee? Will there be an
equitable distribution of affected constituencies?
Response: The Commission is keenly aware of the diverse interests
among many stakeholders in this process. We have discussed the project
with more than 80 representatives of various groups. To foster early
acceptance of the process, the Commission and the Institute invited
representatives of the oil and gas seismic industry, academic/research
institutions, environmental groups, and federal agencies (Navy
operations and research, the Minerals Management Service, the Fish and
Wildlife Service, and the National Marine Fisheries Service) to advise
us on the selection of facilitators. Six people not associated with the
Commission participated in the interviews and advised the Commission
and Institute about potential facilitators.
The Commission has balanced representation on the advisory
committee, as required by the Federal Advisory Committee Act.
Representatives of the following interests are participating:
oceanographic research institutions,
various sectors of the oil and gas industry,
shipping industry,
environmental organizations, and
federal agencies including the National Marine Fisheries
Service, the Minerals Management Service, the Navy, the Fish and
Wildlife Service, and the National Science Foundation.
4. It was reported at the hearing that Canada has altered its
shipping traffic into the Bay of Fundy and incorporated speed
reductions in certain areas to help reduce ship strikes of right
whales. It was mentioned that this was done using the International
Maritime Organization (IMO) process. Are you familiar with the actions
taken by Canada? Did they institute these action using national
legislation or was is done solely through the IMO? Could the U.S. take
similar actions? Would it require legislation?
Response: The U.S. Coast Guard serves as the lead agency
representing the United States at meetings of the IMO and would be the
most appropriate agency to answer this question. However, the
Commission is familiar with the Canadian action to shift the designated
shipping lanes and the process used to do so.
Action to reconfigure or move a designated shipping lane within the
jurisdictional area of a nation is done under domestic laws and
regulations. Canada, like the United States, is a member of the IMO and
is obligated to ensure that any actions affecting international vessel
traffic are consistent with regulatory standards and provisions agreed
to by the IMO. In this case, the Canadian Coast Guard proposed to shift
an established shipping lane in the Bay of Fundy eastward so as to
reduce its overlap with known right whale feeding areas. The proposal
(and the action subsequently implemented), however, did not incorporate
any speed restrictions. If that was suggested during the hearing, it
was done so in error. Once the proposed action was agreed to
domestically, the Canadian Coast Guard, which represents Canada at
meetings of the IMO, presented it to the IMO to ensure consistency with
the international measures agreed to by IMO members. Canada's proposal
was subsequently reviewed by at least two IMO committees--the Marine
Environment Protection Committee and the Marine Safety Committee--both
of which approved the action. The U.S. Coast Guard expressed support
for the action at meetings of both committees when the matter was
considered. With IMO's approval, the Canadian Coast Guard then
implemented the measure under its domestic authority and regulations.
The U.S. Coast Guard has similar authority to designate and change
shipping lanes under U.S. law (the Ports and Waterways Safety Act), and
we do not believe that additional legislation would be needed to take
an action similar that which Canada took. It is somewhat less clear
whether such an action could be taken under U.S. law in areas outside
of territorial waters but within the U.S. Exclusive Economic Zone for
the purpose of protecting right whales in high-use feeding habitats or
whether moving shipping lanes would be an appropriate action. For
example, in the Great South Channel off Massachusetts and Rhode Island,
shipping lanes cross a designated right whale critical habitat.
Shifting those lanes to avoid the critical habitat would expose ships
to shoals that would pose a navigational safety problem and is not
practical. Additional legislation may be needed to provide authority
for establishing mandatory routing and speed measures, which were not
part of Canada's action. The National Marine Fisheries Service has, for
several years, been studying whether to address ship strikes of large
whales by regulating vessels speeds but to date has not proposed a
regulatory program to do so.
Because of the uncertainty concerning what actions can be taken
under existing law, the Commission is currently supporting an analysis
by independent legal experts of U.S. and international authorities
regarding such measures. We expect the analysis to be completed soon
and will provide a copy to you when it is available.
5. How do you suggest that we protect, to the greatest extent
possible, marine mammals from injury in Level A harassment within a
statutory and regulatory framework?
Response: The current definition of Level A harassment includes
activities that have the potential to injure a marine mammal or marine
mammal stock in the wild. The agencies charged with implementing the
MMPA believe that this definition is too broad and would include
activities with any potential to injure a marine mammal, no matter how
remote. Therefore, in crafting the Administration's proposed
definition, we sought to exclude potential injuries that are highly
unlikely to occur. This was done by requiring that there be a
``significant potential'' for injury. The definition originally
proposed in H.R. 2693 would have established a higher standard by
requiring that there be a ``probability'' of injury. As reflected in
the Commission's testimony, we are concerned that this would be
interpreted as meaning that injury would be more likely than not to
occur. As we indicated at the 24 July hearing, this is not a protective
enough standard. We are pleased that the Committee adopted a more
inclusive term at mark-up, but continue to believe that defining Level
A harassment as ``any act that has [any] potential to injure a marine
mammal...'' is overly broad.
In crafting the definition that ultimately is adopted, Congress
should be mindful not only of the definition itself, but how it fits
within the overall framework of the Act. That is, the definition acts
as the initial filter for identifying those activities that merit
greater scrutiny. We believe that when an activity poses more than a
remote threat of injury (i.e., that there is a significant potential
for injury), either to individual animals or to marine mammal
populations, review by the responsible resource agencies during an
authorization process is warranted. This does not mean that the
activity cannot go forward. It merely means that agency examination and
authorization are needed. If, for example, an activity has a
significant potential of causing incidental injuries, the agency would
need to determine that, should such an injury occur, it would have a
negligible impact on the stock. The agency would also consider whether
mitigation measures could reasonably be taken to reduce the frequency
or magnitude of any such injuries.
6. What are some of the factors Congress should consider when
crafting a final harassment definition?
Response: A good and usable definition should meet several
objectives. First and foremost, it should provide sufficient clarity
such that the regulatory agencies, those whose actions might harass
marine mammals, and the general public have a common understanding of
what activities would or would not constitute harassment. There should
be clear guidance as to when an authorization for taking marine mammals
is needed and when enforcement actions are warranted.
An appropriate definition also needs to be sufficiently protective
of marine mammals. That is, it should be broad enough to include all
actions that can be expected to adversely affect marine mammals or
marine mammal populations. At the same time, the definition should not
be so broad that it places undue burdens on the regulatory agencies and
the public. It makes no sense to expend agency resources and to require
someone to obtain an authorization when the expected impact on marine
mammals is truly de minimis.
The definition should also provide a mechanism for considering the
cumulative impacts of activities that may individually have only minor
impacts on marine mammals but that collectively could have significant
effects on those animals and on marine mammal populations. For example,
a flight response of a marine mammal to a passing vessel may be
relatively benign, but if it happens frequently in response to repeated
exposures, or in conjunction with other types of disturbance, it could
significantly alter the animal's behavior in ways that could affect its
health or survival or that could lead to population-level effects, such
as changes in distribution patterns.
Another consideration in crafting a harassment definition is its
adaptability to a variety of situations. It needs to recognize the
diversity among marine mammals. For example, the response of a manatee
to a particular stimulus may be quite different than that of a baleen
whale, which might vary considerably from the response of a pinniped,
polar bear, or sea otter. There should also be a recognition that a
marine mammal's response, and the importance of that response, may vary
depending on a variety of factors, including age, seasonal behavioral
patterns, or the activity in which the animal is engaged.
7. How do we incorporate the level of current scientific knowledge
about how marine mammals may be injured and at the same time protect
animals from injuries we have not yet been able to measure?
Response: Marine mammals may be injured by a variety of human
activities including, among other things, boat or ship strikes,
entanglement with actively fishing gear as well as fishing and other
debris, illegal shooting, exposures to intolerable levels and types of
anthropogenic sounds, and injuries that occur when pinnipeds are
disturbed on land and injure themselves in their efforts to escape to
the sea. Because it is difficult to examine injured animals at sea, the
full nature and extent of such injuries and their eventual consequences
are difficult to evaluate. Injuries from shooting, entanglement, and
propeller strikes may be less difficult to detect because they result
in consequences that can be observed visually. Blunt-force injuries or
those that occur as a result of sound may be less easily detectable
because they are internal. If injuries result in decreased survival or
reproduction, then they are significant not only for the affected
animal but also may have significant population-level effects. Although
research has been conducted to understand the effects of injury on
individuals and populations, we are still considerably limited in our
ability to fully and reliably characterize the significance of such
injuries.
8. How should scientific research activities with potential impacts
on marine mammals be treated by the permit process in statute if the
activity is designed to test the level of harassment that the activity
causes in certain marine mammal species?
Response: The Commission believes that well-designed research into
the effects of various activities on marine mammals can provide
valuable information that would be useful for implementing the
provisions of the MMPA. For example, rather than relying on
extrapolations from tests using sound levels well below those that
would be used in operating the LFA SURTASS sonar to predict the likely
effects on marine mammals, the Commission encouraged the Navy to
conduct additional research to test the reactions of marine mammals to
the louder source. We also encouraged the Navy to conduct additional
experiments to test the effectiveness of other sonars in locating
marine mammals for use as a possible mitigation measure. A permit was
issued by the National Marine Fisheries Service to authorize this
additional research but was later enjoined because of problems with
compliance with the National Environmental Policy Act in issuing the
permit.
The Commission believes that additional research into the potential
effects of various human activities on marine mammals is needed and
will help us make the determinations required under the MMPA. Currently
there is no impediment under the Act to authorizing such research
provided that it is bona fide and, if lethal taking is involved, it
meets the other requirements of section 104(c)(3). The Commission
recommends that the availability of such authorizations remain
unchanged.
9. What is the difference between ``probability'' and ``potential''
in describing the level of concern that would generate a need for an
incidental take permit under Level A harassment (injury) for a
particular activity?
Does the word ``probability'' have a clear and commonly
understood legal definition? What is the distinction from
``potential''?
Response: The word ``probability'' has a common dictionary
definition as something that is probable--i.e., it is more likely than
not to occur. The word also has a meaning in a statistical sense to
mean the likelihood with which something will happen, e.g., there is a
30 percent chance that it will rain tomorrow. Absent some indication
that we intend it to mean a lower likelihood in the particular
instance, however, it is generally interpreted to mean more than a 50
percent likelihood.
``Potential,'' on the other hand, is a much more inclusive term. It
is generally defined to mean something that is capable of happening,
even something with a very low probability of occurrence.
As reflected in our testimony at the July 24 hearing, the
Commission believes that the probability standard used in the
definition of Level A harassment establishes too high a threshold for
defining what constitutes taking by injury. In this regard, the common
understanding of the term probability, absent any modifier (e.g., a 10
percent probability 1), is that something is more likely
than not to happen. When addressing possible injuries to marine mammals
and marine mammal populations, this is not a very protective standard.
---------------------------------------------------------------------------
\1\ This value is used for illustrative purposes only. The
Commission recommends against including any such value, because it goes
beyond the level of resolution that available science and data can
provide. For further discussion, see our response to question 3 from
Congressman Pallone.
---------------------------------------------------------------------------
10. How should the broader impacts or potential impacts of sound
(for example ship propellers), that may disturb or disrupt natural
behaviors of marine mammals, be treated in statute?
Response: We are just beginning to understand the potential impacts
of anthropogenic sound in the marine environment. If we are to ensure
that marine mammals are protected, we must recognize the uncertainties
associated with such potential effects, carry out research to resolve
those uncertainties, and manage cautiously to minimize the risk to
marine mammals while avoiding undue constraints on activities (e.g.,
shipping) that are deemed essential to national needs for security,
energy, food, and commerce. The effects of human activities must be
evaluated in the context of all factors that may threaten marine
mammals (e.g., contaminants, diseases, direct and indirect fisheries
interactions, coastal development, and habitat loss). Such effects may
be evident only when viewed over the long term. The single occurrence
of a ship passing an important marine mammal foraging area may have no
significant effect on those animals. The establishment of a shipping
lane through that same area may have significant effects if animals
eventually abandon the site due to repeated disturbance. Therefore, we
believe that statutes should recognize the potential for long-term,
cumulative effects of such sounds, provide for essential research into
those effects, and provide a cautious management approach that
recognizes the uncertainties.
11. How should the range of currently non-permitted activities that
are directed at marine mammals (i.e., whale watching, swim with dolphin
programs, or jet ski harassment) be treated by the statutory or
regulatory process?
Response: The Commission believes that such activities, if they
disturb marine mammals, should be prohibited unless specifically
authorized. In this regard, we believe that the current definition of
harassment is sufficiently broad to encompass most of the activities of
concern. Nevertheless, enforcement of the definition as it applies to
such activities would likely be improved if were more explicit that
actions directed at marine mammals in the wild that are likely to
disturb the animals constitutes harassment. Although the Commission has
recommended that the National Marine Fisheries Service promulgate
regulations to establish objective criteria for determining when a
taking by harassment has occurred as one way to address interaction
problems at specific sites where problems are particularly acute (e.g.,
the dolphin resting bays in Hawaii), a statutory change in the
definition would provide a clearer and more comprehensive solution.
The Commission continues to be concerned that activities that
disturb marine mammals, if not checked, have the significant potential
to alter marine mammal behavior in detrimental ways and, if persistent,
can cause marine mammals to abandon important areas used for feeding,
resting, or other essential activities. The Commission therefore
recommends that, whatever definition of harassment is ultimately
adopted, it be sufficiently broad to provide an effective mechanism for
addressing sources of disturbance targeted at marine mammals. As
reflected in the Administration's proposed definition of Level B
harassment, we believe that, for these generally avoidable sources of
disturbance, enforcement actions should be based simply on the fact
that the animals were disturbed without requiring an additional showing
that the disturbance somehow adversely had significant impacts--e.g.,
that it adversely affected the survival or reproduction of the marine
mammal or marine mammal stock.
12. In the definition of Level B harassment, does it make sense to
qualify the activity (i.e. migration, breeding) or the effect
(biologically significant disruption of behaviors) in Level B
harassment? Why or why not?
Response: What we should be striving for is the inclusion in the
definition of those responses and effects that have some biological
significance either at the individual or the population level. There
nevertheless needs to be a recognition that predicting what activities
will result in biologically significant effects, or even in determining
whether a particular response is biologically significant, may be
difficult. Making such determinations when marine mammals are exposed
to multiple activities that may not individually result in biologically
significant disruption, but which cumulatively exceed that threshold,
is likely to be even more difficult. Whatever definition is adopted, it
needs to be broad enough to include such situations.
Although less ideal in the theoretical sense, a definition based on
the disruption of biologically significant activities would likely be
easier to implement. That is, once these important activities are
identified, the only determination to make is whether such an activity
were being disrupted--there would be no value judgment to make as to
whether or not the disruption were biologically significant. Because of
this, however, the definition in some cases would likely be overly
broad by including de minimis disruption of important behaviors.
13. Which is the more scientifically used term--``biologically
significant activity'' or ``biologically significant disruption''?
Should either of these terms be defined in H.R.2693?
Response: Neither of these phrases are generally used scientific
terms of art. As a result, there will still be a need for additional
interpretation, be it in statutory language, regulatory definition, or
case-by-case implementation. We believe that under most of the
definitions that have been proposed there is a fair amount of latitude
in how they might be interpreted. That is, there is no unanimity as to
what would constitute a biologically significant disruption of a
particular activity or behavior, or even as to what activities should
be considered to be biologically significant. Thus, we believe that,
whatever definition is ultimately adopted, additional guidance
concerning its implementation and interpretation would be useful. This
could be provided either through additional statutory definitions or
through more detailed guidance in the committee reports and other
legislative history of the provision.
14. Is it possible to define ``harassment'' and still provide the
agency flexibility to modify its regulations to respond to new
scientific information?
Response: Virtually all of the definitions being debated provide
some such flexibility. Under the Administration's proposed definition,
harassment would include those activities with a significant potential
to injure a marine mammal or marine mammal stock or that is likely to
disturb a marine mammal or marine mammal stock by causing disruption of
natural behavior patterns to a point where those patterns are
significantly altered or abandoned. The interpretation of what
activities would fit under this definition is subject to change as new
information is gathered. For example, as we obtained additional
information to refine our understanding of the intensities and types of
sounds that pose threats to various taxa of marine mammals, the
definition would adapt accordingly. Similarly, the regulatory agencies
would likely alter the way they implement the definition of Level B
harassment as more is learned about the specific types of activities
that are likely to cause significant disruption or how various
activities would cumulatively affect marine mammal behavioral patterns.
Latitude would also be provided under the other proposed
definitions as we gained additional insights into the types of
disruptions that would have significant effects, which behaviors or
activities are significant to marine mammal survival and well-being, or
what constitutes a meaningful disruption of a biologically significant
activity.
15. Which would you describe--``feeding'' or ``foraging''--as more
biologically significant in terms of behaviors of marine mammals that
need protection through the incidental take permitting process?
Response: The terms ``feeding'' and ``foraging'' are closely
related and in some cases are used interchangeably. However, we suggest
that ``foraging'' is the broader term and includes not only the act of
``feeding'' but associated activities such as transiting to and from
sites where prey may be found, carrying out of various behaviors
related to searching for prey (e.g., dive patterns), and an overall
``foraging'' strategy such as focusing on benthic- or bottom-associated
prey (as do elephant seals), surface skimming to collect zooplankton
(as do large baleen whales), and so on.
The intent of all these behaviors is to achieve the same goal: the
securing of sufficient energy and nutrition to maintain health and
promote survival and reproduction. Foraging success may be
significantly altered not only when feeding is disrupted, but also when
associated activities (e.g., transiting to and from feeding sites) are
affected. Because scientists are not yet able to determine the relative
significance of each element of a foraging strategy, it is difficult to
say with confidence how much or what kinds of disturbance may be
tolerated. For that reason, protection of ``foraging-related
behaviors'' rather than simply ``feeding'' appears to provide greater
assurance that human activities will not cause disruption of
biologically significant behavior. At the same time, identifying and
understanding all behaviors associated with foraging is a more
difficult task than identification of the act of feeding.
16. The Administration's definition uses the term ``surfacing''
instead of ``breathing,'' which is in the current definition of
harassment. Why was this change made?
Response: Although some have equated these terms, they in fact are
not equivalent. One of the key reasons that marine mammals surface is
to breathe, but they may surface for a variety of other important
reasons. The wording change proposed in the Administration bill
addresses this distinction by using the more inclusive term.
17. Why did the Administration use the term ``non-commercial'' in
its amendments to section 118? What types of fishing was this language
trying to capture?
Response: While the term ``non-commercial'' captures the thrust of
the Administration's proposal, the Administration bill does not in fact
use that term. Rather, it uses the term ``listed fishery'' to mean all
fisheries that qualify for inclusion in the list of fisheries as
category I and II and those commercial fisheries listed as category III
fisheries.
As reflected in the Administration bill and the testimony presented
by the Commission and others, there is a need to expand the coverage of
section 118 to include all fisheries that frequently or occasionally
take marine mammals. Originally, we had focused on adding recreational
fisheries to the commercial fisheries currently included under the
incidental take regime. However, the terms ``commercial'' and
``recreational'' may not cover the full range of fisheries that may be
of concern. For example, subsistence fishermen may not fall into either
category. Thus, the term ``non-commercial'' or its equivalent is needed
to ensure that all fisheries that result in frequent or occasional
incidental mortality or serious injuries of marine mammals are covered
under section 118, regardless of what is done with the catch.
18. There have been comments about the cumulative effects of
activities on marine mammals. What is our current state of knowledge on
cumulative effects? Do we currently have the ability to determine how
different activities cumulatively affect marine mammals? Is it possible
for any marine mammal affected by different activities to have time to
recover from the first effect prior to the second effect happening?
Response: The well-being of individual marine mammals and marine
mammal populations is affected by a variety of factors, both natural
and anthropogenic. Animals that carry large contaminant burdens, for
example, may be more susceptible to disease. Similarly, animals that
are subject to competition for prey from fisheries may be required to
spend more time foraging and therefore may be more vulnerable to
predation. Considerable progress has been made in recognizing the
potential for such cumulative effects on marine mammals and, to a
limited extent, in modeling those effects. Less progress has been made
in actually describing the relative roles of such factors in wild
marine mammal populations. Investigating the effects of multiple
factors may be seriously confounded because it may be difficult to
assess the significance of individual factors, and those individual
factors may interact synergistically or antagonistically. Concerted,
long-term multi-factor research is needed to provide managers with the
information needed to manage cumulative effects. In the absence of such
information, scientists and managers are limited largely to educated
speculation about such effects.
The extent to which an animal or a population of marine mammals is
affected by cumulative factors depends on the nature, timing, and
persistence of those factors and their effects and the nature and
persistence of the response of individual animals. When such factors
are relatively short-lived and the response they elicit is
correspondingly short-lived, it is more likely that affected animals
will be able to recover from the effects of an initial factor prior to
being challenged by the effects of a second factor.
19. How can we manage for cumulative effects when we may not have
scientific knowledge on how activities actually affect marine mammals?
If we were to manage based on what we thought were the impacts,
wouldn't that create havoc with the different industries and scientists
that may have interactions with marine mammals?
Response: In the three decades since the passage of the Marine
Mammal Protection Act, considerable progress has been made in studying
and conserving marine mammals. That progress includes a stronger
science-based understanding of their natural history and their
interactions with human activities. Where such progress has been made,
it has been facilitated by careful identification of the problems
affecting their conservation, development of adequate research programs
to assess those problems and their effects, and implementation of
management approaches that facilitate further research while minimizing
risk by avoiding, minimizing, or mitigating the factors that may affect
them. For example, observations that large numbers of animals were
being killed incidentally by direct interactions with fisheries led to
the development of observer and research programs, adjustments in
fisheries management such as time-area closures and changes in fishing
practices and gears, and the development of a stock assessment approach
to put current levels of mortality and injury in perspective. We
believe a similar approach is needed for addressing the potential
effects of cumulative factors, i.e., a combination of careful detection
and description of the problems, research to provide information needed
to solve the problems, and cautious management to avoid, minimize, or
mitigate potentially adverse effects.
There is no doubt that such an approach will require adjustments
from industries and, on occasion, scientists to ensure that the
conservation goals of the Marine Mammal Protection Act are met.
Nonetheless, the approach has been effective in certain specific
circumstances and is likely to be effective for cumulative effects.
There are, at present, successful mechanisms for limiting many forms of
incidental take and for providing permits for research while ensuring
that such research does not cause unacceptable impacts on marine
mammals. Over time, we expect such an approach to be more successful if
the burden of research into potential adverse effects is placed on
those whose activities may lead to adverse effects. Because successful
management regimes are in place to address incidental takes and the
effects of research, we do not expect that management based on
potential impacts will cause havoc for industries or scientists but
rather will lead to more proactive, thoughtful research to enhance our
conservation objectives.
20. If we apply the precautionary approach to the level that some
groups have suggested, how will marine mammal researchers be able to
gather information on marine mammal physiology and the effects of human
activities (such as sonars) on marine mammals?
Response: The MMPA, since its inception, has included a moratorium
on the taking and importation of marine mammals. The moratorium,
however, is not absolute, and the taking of marine mammals is allowed
or may be authorized for a variety of purposes. The showings that must
be made to obtain an authorization to take marine mammals varies
depending on the activity (and the value Congress has placed on it) and
the level of risk it poses to marine mammals.
Permits for purposes of scientific research are issued to
applicants that demonstrate that the proposed taking is needed to
further a bona fide scientific purpose. If lethal taking is involved,
the applicant must demonstrate that a non-lethal method of conducting
the research is not feasible. And, before lethal taking of a depleted
marine mammal can be authorized, the applicant needs to demonstrate
that the results of the research will directly benefit the species or
stock or will fulfill a critically important research need. The Marine
Mammal Commission does not believe that these are overly burdensome or
unreasonable criteria.
The Commission strongly supports the reasonable application of a
precautionary approach regarding activities that affect marine mammal
populations. This is a prudent and fundamental tenet of the Act. The
Commission does not believe that application of that approach would
preclude scientists from studying the effects of various activities on
marine mammals. In fact, good science is critical to improving our
understanding of how human activities may affect individual marine
mammals and populations of marine mammals.
The Commission carefully reviews all permit applications for
scientific research and incidental harassment authorizations that the
National Marine Fisheries Service and the Fish and Wildlife Service
propose to issue. We scrutinize what applicants submit to determine
whether the proposed research or activities meet the requirements of
the Act as to its potential to expand knowledge about marine mammals or
their habitats. The Commission also recommends that scientists
undertake their research in the most humane ways possible and that
federal permit-granting agencies coordinate activities of multiple
researchers to reduce duplication of marine mammal exposure to
interference.
It should also be kept in mind that legal challenges to scientific
research by environmental groups have focused more on whether the
National Marine Fisheries Service satisfied the requirements of the
National Environmental Policy Act (NEPA) than on the Marine Mammal
Protection Act. The two cases that have successfully challenged MMPA
scientific research permits (one challenging a permit to biopsy killer
whales in Puget Sound and the other a more recent case challenging
research associated with LFA sonar) both turned on the adequacy of NEPA
compliance, rather than on MMPA considerations. In another recent case
challenging seismic research not involving marine mammals, the
researchers had not applied for a an incidental harassment
authorization under the MMPA and had not prepared any NEPA analysis.
The Commission is aware of no proposals being made that would
change the MMPA requirements pertaining to permitting scientific
research. Thus, permits would still be available to scientists seeking
to conduct bona fide research to gather information on marine mammal
physiology and on the effects of human activities on marine mammals.
This could include research that might injure or even kill depleted
marine mammals (e.g., research to establish the sound levels from
sonars or other sources that pose physical threats to marine mammals),
provided that a sufficient case were made as to how this would benefit
the stock or fulfill a critically important research need.
21. Should the MMPA be interpreted to protect each and every
individual marine mammal or to protect marine mammal populations?
Response: The Marine Mammal Protection Act creates broad
prohibitions against ``taking'' individual marine mammals or
congregations of marine mammals. People doing the taking can apply for
and receive various types of authorizations to engage in specific
activities that both directly and incidentally take individuals or
groups of marine mammals.
The Commission supports the approach currently in the statute.
Unless you maintain the specific standard of prohibiting all takes, it
will be virtually impossible to distinguish and codify when numerous
individual takes will cumulatively add to potentially significant
impacts on marine mammal populations.
22. Should the Act be changed to accommodate concerns about
increasing conflicts between non-endangered marine mammals and humans?
Response: At the outset, it should be noted that the MMPA currently
includes a mechanism for authorizing the taking of marine mammals in a
variety of situations, including the reduction of burgeoning
populations. The Act provides for waiving the moratorium on taking
marine mammals if the species or stock is within its optimum
sustainable population and will not be disadvantaged by the taking, and
the taking is in accord with sound principles of resource conservation
and will be consistent with the purposes and policies of the Act. The
Act even anticipates that one reason for authorizing such taking is the
overpopulation of a particular species or stock. Before authorizing
taking for this reason, however, the Secretary is required to consider
whether it would be more desirable to transplant animals to a location
historically, but not currently, inhabited by the species or stock.
It needs to be recognized that culling expanding populations will
not necessarily solve the identified problems, particularly competition
for fishery resources. This would be the case if marine mammal
abundance and prey consumption are not linearly related. That is,
feeding efficiency of individuals may decline as competition with con-
specifics increases. Thus, reducing a population by 50 percent will not
necessarily reduce fish consumption by 50 percent. In fact, it may
reduce consumption only marginally.
In certain instances, the Commission could support amending the Act
to provide additional mechanisms to address concerns with respect to
conflicts between people and healthy marine mammal populations. The
Commission would want to work with Congress to develop precautions to
ensure that marine mammal populations remain stable and that federal
agencies would continue to oversee marine mammal conservation and
management unless management authority is returned to a state
government pursuant to section 109. In such instances, the Commission
would want to ensure that the state program meets similar standards.
The Commission is pleased that some marine mammal populations have
responded to protection afforded by the Act and increased to the point
that they have reached their optimal sustainable population (OSP) level
as defined in the Act. We believe that OSP would be a better management
standard than whether a population qualifies for listing under the
Endangered Species Act as endangered or threatened or has been
identified as a candidate species.
Questions from The Honorable Frank Pallone, Jr.
Definition of harassment:
Over the past year, Congress has been presented with several
different options to re-define the definition of harassment. A new
definition is being offered in H.R. 2693.
Please compare the definition proposed in H.R. 2693 and
discuss whether it compares positively or negatively to other proposed
definitions.
Response: Several different definitions of the term harassment have
been proposed by various interests as the Marine Mammal Protection Act
is being considered for reauthorization. All of them are based to one
degree or another on the existing definition and the proposed changes
suggested by a National Research Council panel that considered issues
related to marine mammals and ocean noise. They differ primarily in
four respects--the degree of likelihood that the covered activities
will injure or disturb a marine mammal or marine mammal stock; the
types of behaviors or activities that are explicitly covered; whether a
significance threshold is established before disturbance or disruption
of those activities would constitute harassment; and whether special
provision is included to address activities directed at marine mammals.
With respect to the first element, for example, there is a continuum in
the proposals running the gamut from activities having any potential
for disturbance to those that present a probability or likelihood that
certain types of responses will be evoked, with several intermediate
standards falling in between. These proposals reflect differing
perceptions with respect to how inclusive we should be in order to
protect marine mammals from any sort of disturbance versus how much we
should seek to disencumber those who engage in activities that might
have only minor effects on marine mammals from the requirements of the
MMPA.
The various definitions that have been considered are, by and
large, permutations of these four elements. We believe that the
Administration's proposed redefinition strikes a better balance of
addressing these considerations than does the definition proposed in
H.R. 2693.
As noted in our testimony at the July 24 hearing, there are aspects
of the harassment definition in H.R. 2693 that we believe may cause
problems if enacted. For example, for an act to constitute Level A
harassment under the introduced bill, there must be ``the probability''
that a marine mammal or marine mammal stock will be injured. The
inclusion of this threshold suggests that it must be more likely than
not that an injury will result from the particular action being
considered. That is, if there is a 25 percent chance that a marine
mammal will be injured by exposure to a particular stimulus, a one-time
exposure would not necessarily be considered harassment, even though
the risk of injury is substantial. As such, we recommend replacing the
word ``probability'' in the Level A harassment definition with a more
inclusive phrase such as ``significant potential,'' as used in the
Administration's proposal.
Like the existing definition of Level B harassment and that
recommended by the Administration, the proposal in H.R. 2693 contains a
list of behaviors that, if disrupted to the extent specified, would
constitute harassment. We are concerned, however, that the list of
specifically identified behaviors in the House bill does not include
sheltering, which is an element of both the existing definition and the
Administration's proposal. For example, the resting behavior of spinner
dolphins in Hawaii in secluded, inshore areas clearly fits within the
notion of sheltering. It is not as clear that such behavior would be
encompassed by the terms ``care of young, predator avoidance, or
defense,'' which are the closest associated terms under the proposed
harassment definition in H.R. 2693. Further in this regard, we note
that the terms ``care of young,'' ``predator avoidance,'' and
``defense'' included in the proposed definition of Level B harassment
are not very precise terms. Absent clarification, their inclusion in
the definition may lead to implementation difficulties and, perhaps,
litigation.
In addition, as was pointed out at the July 24 hearing, any list of
specifically identified behaviors in the definition should include
surfacing or breathing. As reflected in the Administration bill, we
prefer the term ``surfacing'' over ``breathing'' inasmuch as it is the
more inclusive term. For unexplained reasons, neither term was included
in the definitions set forth in H.R. 2693.
We are also concerned about the ``potential to disturb'' threshold
set forth in the second clause of the proposed harassment definition.
The agencies that developed the Administration's proposed definition
rejected this language as being overly broad, inasmuch as it would
include even a very remote possibility that disturbance might occur. We
believe that the standard included in the Administration proposal,
``disturbs or is likely to disturb,'' provides a more appropriate
delimitation concerning what activities should be covered under this
part of the harassment definition.
The Commission is pleased that the proposed definition in H.R. 2693
recognizes the value of including a directed taking provision in the
definition of Level B harassment, as recommended by the Administration.
Absent this second prong, it would be much more difficult, if not
impossible, for the regulatory agencies to bring enforcement cases in
response to activities that traditionally have been considered
harassment. Even in a case when a marine mammal had been intentionally
pursued, the government, to prevail, would need to show not only that
the animal was disturbed by the pursuit, but that the resulting
disruption was somehow ``biologically significant.'' For example, is
the disturbance that results from chasing a dolphin along a beach for a
few hundred yards with a jet ski biologically significant? Arguably
not. Nevertheless, it should be considered harassment.
We are concerned, however, about the inclusion of the phase ``is
likely to impact the individual'' in this second part of the Level B
harassment definition (clause iii). It raises a possible defense in a
traditional harassment case that, even though a marine mammal was
clearly disturbed by the directed activities of the defendant, the
disturbance somehow did not have any impact on the health or well-being
of the animal. It may be that the intent of the provision is to include
all directed activities that are likely to disrupt one of the listed
marine mammal behaviors. If this is the case, it should be clarified,
either in the statutory language or the accompanying legislative
report.
How will the proposed change to the definition of harassment affect
scientific research and/or military readiness activities?
Response: Without additional description of the terms used in the
proposed definition of harassment, it remains unclear how they will
affect scientific research, military readiness, or other activities.
Currently, there is no unanimity as to how the various terms (e.g.,
biologically significant disruption and potential to disturb) would be
interpreted. Although we can say that some of the activities that are
considered to constitute harassment under the current definition will
likely fall outside of the new definition, we cannot predict how
extensive the differences will be. For example, some may argue that the
testing of low-frequency sonar by the Navy would no longer be
considered to be harassment while others are likely to argue that it
would be under the definition included in H.R. 2693. Similarly, without
additional guidance, either in the statutory provision itself, in
report language or other legislative history, or through agency
regulations and policy statements, it is difficult at this stage to
predict exactly how the proposed changes in the definition would affect
research activities.
A further confounding issue is how cumulative impacts would be
addressed under the any of the proposed definitions that have been put
forward. Under the definition proposed in the House bill, for example,
it is unclear how activities that individually would not be considered
to cause biologically significant disruption but that collectively
could have significant impacts would be treated. Would each activity be
considered to constitute harassment? Would none? Or would only those
activities beyond the critical point where the disruption becomes
significant be considered harassment, and if so, how would that point
be ascertained? The answers to these questions likely would profoundly
affect what is and is not considered to be harassment.
Are there specific activities that might fall outside
this definition?
Response: Although there no doubt are some such activities, we are
unable to identify them with any certainty because of the ambiguities
inherent in all of the definitions currently under consideration. For
example, some have suggested that a pinniped turning its head, of even
fleeing into the water temporarily from its haul-out site, in response
to a passing boat would fall outside of the definition. However, if
that boat were only one of many that passed the location prompting such
a response, they could cumulatively cause significant disruptions, even
causing the animal to abandon preferred habitat.
The definition for Level A (potential to injure) harassment
proposed in H.R. 2693 requires that an activity have ``the probability
to injure'' a marine mammal. It seems to me that this change would
require a higher burden of proof for a given activity's likelihood of
causing harm.
Do you feel that this change would make the definition of
harassment less protective of marine mammals?
Response: Yes. As reflected in our testimony at the July 24
hearing, the Commission believes that the probability standard used in
the definition of Level A harassment establishes too high of a
threshold for defining what constitutes taking by injury. In this
regard, the common understanding of the term ``probability,'' absent
any modifier (e.g., a 10 percent probability), is that something is
more likely than not to happen. When addressing possible injuries to
marine mammals and marine mammal populations, this is not a very
protective standard.
Does the word ``probability'' have a clear and commonly
understood legal definition? What is the distinction from
``potential''?
Response: The word ``probability'' has a common dictionary
definition as something that is probable--i.e., it is more likely than
not to occur. The word also has a meaning in a statistical sense to
mean the likelihood with which something will happen, e.g., there is a
30 percent chance that it will rain tomorrow. Absent some indication
that we intend it to mean a lower likelihood in the particular
instance, however, it is generally interpreted to mean more than a 50
percent likelihood.
``Potential,'' on the other hand, is a much more inclusive term. It
is generally defined to mean something that is capable of happening,
even something with a very low probability of occurrence.
As noted above, there is a continuum of terms that could be used to
describe the level of certainty that is being incorporated into the
harassment definition. A possible progression from most inclusive to
that requiring the highest level of probability would be as follows:
possible, potential, significant potential, plausible, probable/likely,
highly likely, certain. We believe that using the terms on the extreme
ends would result in a definition that is either overly inclusive or
too restrictive.
Would the addition of a modifier that explains the
relative probability of injury (such as 20%, 50%, 90%) be helpful in
clarifying the intent of the word ``probability''?
Response: As discussed above, the common understanding of the word
``probability'' absent any such modifier is that something is more
likely than not to occur. Such a standard, in the Commission's view, is
not protective enough, particularly when we are addressing injuries to
marine mammals and marine mammal populations. This being the case, it
would help to clarify the intent of Congress if more specific guidance
concerning the degree of probability were included in the definition.
Nevertheless, we recommend against including a specific numerical
standard in the statute itself. It would create a level of specificity
that, at least in some cases, would likely be beyond the resolution
that available science and data could provide. Thus, in all but the
most clear-cut cases, litigation could result as to whether the
probability were above or below the statutory threshold. Recognizing
the limitations of available science, a qualitative, rather than a
quantitative, standard would be preferable. We continue to believe,
however, that there needs to be clear guidance and general
understanding as to how such a qualitative standard is to be
interpreted and implemented.
The proposed change to the definition of Level B harassment would
require that an activity cause a ``biologically significant
disruption'' of activities including, but not limited to, migration,
breeding, care of young, predator avoidance, defense, or feeding. In
contrast, the definition proposed earlier by the NRC would require that
an activity cause a ``disruption to biologically significant''
activities.
Is this inversion of words important? Why?
Response: Clearly, the inversion of these words is important. What
we should be striving for is the inclusion in the definition of those
responses and effects that have some biological significance, either at
the individual or population level. There nevertheless needs to be a
recognition that predicting what activities will result in biologically
significant effects, or even in determining whether a particular
response is biologically significant, may be difficult. Making such
determinations when marine mammals are exposed to multiple activities
that may not individually result in biologically significant
disruption, but which cumulatively exceed that threshold, will likely
be even more difficult. The definition needs to be broad enough to
include such situations.
While less ideal in the theoretical sense, a definition based on
the disruption of biologically significant activities would likely be
easier to implement. That is, once these important activities are
identified, the only determination to make is whether such an activity
were being disrupted--there would be no value judgment to make as to
whether or not the disruption were biologically significant. Because of
this, however, the definition in some cases is likely to be overly
broad by including de minimis disruption of important behaviors.
It seems to me that it would be easier to define a disruption to a
biologically significant activity than it would be to determine what
constitutes a biologically significant disruption to that activity.
If this is true, would the proposed change in the
definition make it less protective of marine mammals?
Response: As discussed above, it likely would be easier to identify
a disruption of a biologically significant activity than to determine
what constitutes a biologically significant disruption. This does not
necessarily make the definition more protective, however. This would
depend on what behaviors were identified as being biologically
significant and on how biologically significant disruptions were
defined and identified.
How would the change in the definition of Level B (potential to
injure) harassment affect scientific permitting?
Response: Under either the Administration's proposed definition or
the one included in H.R. 2693, there should be few, if any, changes
with respect to scientific research permits issued under section
104(c)(3) of the MMPA. Although certain activities may no longer fit
within the first prong of the proposed Level B definitions, which has a
significance threshold, they would continue to be covered under the
second, directed activities prong. Research that involves taking only
by Level B harassment would continue to be covered under the
streamlined procedures of the general authorization established under
the 1994 amendments. Researchers would still be required to demonstrate
that their activities constituted bona fide scientific research.
Activities directed at marine mammals listed as endangered or
threatened, even if they would result only in taking by Level B
harassment, would remain subject to the full permit requirements of the
Endangered Species Act.
Activities that have potential to injure (or, under the
Administration's proposal, a significant potential to injure) would
constitute Level A harassment and would remain subject to the full
permitting requirements of the MMPA.
Other types of research (e.g., seismic surveys) not directed at
marine mammals but that might incidentally take marine mammals by Level
B harassment would require an incidental taking authorization under
section 101(a)(5) of the Act. It is possible that some activities that
currently require such an authorization would no longer be considered
harassment under the new definition and hence would not require an
authorization.
Are there activities, such as ``sheltering'' or ``resting,'' that
are missing from the list of ``migration, breeding, care of young,
etc.''? If so, which behaviors are missing and why are they important
to explicitly mention in the proposed definition?
Response: There are two significant omissions from the list of
activities specifically identified in the definition of Level B
harassment included in H.R. 2693. The first one is ``sheltering.''
Although sheltering may be important for predator avoidance or care of
young, which are included activities under the introduced bill, it also
has other facets, such as resting. Absent the opportunity to rest in
these areas undisturbed, the animals may abandon certain locations or
may be adversely affected through increased stress levels.
The second omission is ``surfacing,'' which the Administration bill
uses as a more inclusive substitute for ``breathing'' (the most closely
associated term included under the existing definition). Obviously, the
ability of marine mammals to surface when and where necessary to
breathe, associate with conspecifics, etc., is important to their
health and well-being.
Would this revised definition still allow for the consideration of
the cumulative negative impact on an individual or population of marine
mammals?
Response: As discussed in the response to question 2, it remains
unclear how cumulative impacts would be treated under the proposed
harassment definitions. From the Commission's perspective, it is
critical that the definition and/or its legislative history not only
clearly indicate that the cumulative impacts of various activities will
be factored into determining what constitutes harassment but also
provide direction as to how such determinations should be made. For
example, will each activity that contributes to what cumulatively
results in significant disruption of important activities be considered
harassment? If not, clear guidance needs to be provided as to which
activities would be considered harassment and which ones would not, and
how those distinctions would be drawn.
If the consideration of small numbers and geographic area were to
be eliminated, how would this affect the ability to determine the
potential negative impact for an activity?
Response: The key finding for issuing an incidental taking
authorization under section 101(a)(5) of the MMPA is whether the taking
will have a negligible impact on the affected species and stocks. This
would not change under the proposed amendments. Although it is true
that the ``small numbers'' and ``specified geographic region''
requirements provide additional mechanisms for helping to ensure that
the scope of an activity is limited, and therefore more likely to have
only negligible effects, this should not be necessary, provided that
findings of negligibility are well justified in other contexts.
Has NOAA Fisheries or USFWS contemplated regulating truly
incidental activities that have little if any direct effect on marine
mammals, such as boat wakes?
Response: The Commission is unaware of any plans by either the NMFS
or the FWS to regulate or prosecute those whose activities have only de
minimis incidental effects on marine mammals. This would not be a wise
use of limited agency resources. Nevertheless, as discussed elsewhere,
there may be instances when seemingly trivial or benign types of
disturbance may be so ubiquitous that they merit greater concern.
Permitting for Scientific Research:
It is clear to me from the testimony that we have heard today that
the permitting process for scientific research is still problematic for
many scientists, but I am still not clear on the root cause of the
problem.
Is the permitting process severely limited by a lack of
resources and staff?
Response: Lack of resources and staff likely contribute to some
permit processing delays. Other factors also may be involved, such as
the submission of an incomplete application or a poorly described or
inadequately justified research proposal. More often, difficulties
encountered with the issuance of scientific research permits stems not
from the requirements of the MMPA but from those of related statutes
such as NEPA and the Endangered Species Act. Making the additional
assessments under the Endangered Species Act, conducting section 7
consultations, and preparing environmental impact statements or
assessments no doubt slow down the process in certain instances.
Would the development of a classification system
identifying specific activities and their associated risk to marine
mammals be a more useful approach to expedite consideration of
different types of activities on a more programmatic basis?
Response: The 1994 amendments to the Marine Mammal Protection Act
added a general authorization, with streamlined procedures, for
scientific research involving taking only by Level B harassment. Thus,
one form of classification system currently exists. The general
authorization could be expanded to include other categories of
research, or separate authorization systems for certain categories of
activities could be designed. Using the general authorization as a
template, the applicant would still be required to demonstrate that the
proposed activities constituted bona fide research. Thus, case-by-case
consideration would be necessary. Also, if taking by other than Level B
harassment would be involved (i.e., if there is the potential to injure
or kill animals, or animals will be captured) greater scrutiny,
including an opportunity for public review and comment, would probably
be warranted.
As noted above, some of the delay involved in processing scientific
research permits is attributable to the requirements of other statutes
such as the National Environmental Policy Act. Therefore, an additional
streamlining measure that could be taken would be the preparation of
programmatic analyses to meet the requirements of NEPA to identify
activities that would have no significant impacts or from which
individual environmental assessments could be tiered.
If endangered or threatened species will be taken, additional time
may be needed to comply with the requirements of the Endangered Species
Act. Heightened scrutiny is probably warranted when invasive research
is being conducted on such species. However, there may be ways to
streamline the authorization process, akin to the general authorization
under the MMPA, when only low-level impacts are expected. This would
require a statutory change.
Take Reduction Teams:
1. A new World Wildlife Fund study released in June conducted by
American and Scottish biologists suggests that accidental capture or
``bycatch'' by the fishing industry may be the biggest immediate threat
the survival of some marine mammals, especially large whales. This
study analyzed bycatch mortality affecting 125 marine mammal
populations over the period of 1990-1999. The study estimates that 1000
whales, dolphins, and porpoises drown every day. Annually,
approximately 308,000 marine mammals die unintentionally.
In light of this information, what conclusions can be
drawn about the effectiveness of the Section 118 take reduction team
process?
Should specific types of fishing gear be permanently
retired due to their associated level of bycatch?
Should a robust program be established to dedicate
adequate resources and technical assistance to promote ``marine mammal
safe'' fishing gear?
Response: The section 118 take reduction team process has been
effective for addressing fisheries bycatch of marine mammals in U.S.
waters. The study described pertained to fisheries worldwide. Although
large numbers of marine mammals have died incidentally in U.S.
fisheries, corrective actions have been taken that have effectively
reduced the number of animals killed or seriously injured. At present,
there are relatively few marine mammal populations in U.S. waters for
which incidental mortality and serious injury exceed potential
biological removal levels. Six take reduction teams have been convened
to address remaining problems. The degree of success achieved by these
teams has varied, but the process provides a useful means of bringing
together representatives of all stakeholder groups. At present, we
believe that U.S. efforts to reduce marine mammal bycatch have been
generally successful. Although refinements in the management process
are still needed, the take reduction team process should remain an
important element of that process.
The study described indicated that the vast majority of marine
mammals killed incidentally in fisheries are captured in gillnets.
There is no doubt that gillnets are problematic in that they are non-
specific with regard to their catch. This indicates that efforts are
needed to modify them or the manner in which they are used if efforts
to reduce bycatch are to be successful. In the past, other gear types
also have resulted in large numbers of marine mammal deaths, but those
gear types and the manner in which they are deployed have been
successfully modified to reduce take levels. Similar efforts are needed
for gillnets.
Zero Mortality Rate Goal:
Robert Zuanich testified that the marine mammals hold a loftier
status than all other animals in the ocean. Wasn't this at least, in
part, the goal of the protective approach of the MMPA?
The ZMRG codifies this placement of marine mammals in the ocean by
stating that anything above a zero rate mortality and injury rate is
unacceptable. Although clearly intractable, this principle sets a high
bar and a principle for how humans interact with marine mammals.
Can you comment on whether the zero mortality rate goal
should be retained? What is its relation to the precautionary
philosophy of the MMPA?
Response: The MMPA recognized that--``marine mammals have proven
themselves to be resources of great international significance,
esthetic and recreational as well as economic, and it is the sense of
Congress that they should be protected and encouraged to develop to the
greatest extent feasible commensurate with sound policies of resource
management and that the primary objective of their management should be
to maintain the health and stability of the marine ecosystem. Whenever
consistent with this primary objective, it should be the goal to obtain
an optimum sustainable population keeping in mind the carrying capacity
of the habitat.''
Therefore, the primary objective of the Act is to ``maintain the
health and stability of the marine ecosystem,'' which is composed of
multiple forms of marine life. Only when consistent with this objective
are marine mammals to be maintained at optimum population levels. Even
then, it needs to be recognized that the optimum level for each stock
is defined as a range from its maximum net productivity level to the
carrying capacity of its ecosystem. Thus, the goal with respect to
marine mammals is to maintain stocks at ``healthy'' levels, not
necessarily maximal levels. As such, it is not clear that marine
mammals are given a ``loftier'' status than other forms of marine life.
Nevertheless, the zero mortality rate goal set a relatively high
standard with regard to the reduction of marine mammal mortality and
serious injury incidental to commercial fisheries. (It is not
applicable to other types of taking or to taking in other contexts.) We
believe, however, that, because it is described as a ``goal'' of the
Act and because the requirement is to approach this goal, there is a
recognition that this standard may not be possible to achieve in all
cases. That achieving this goal is not absolute is reflected in the
take reduction plan requirements of section 118 of the MMPA. While the
long-term goal of such plans is to reduce incidental mortality and
serious injury to insignificant levels approaching a zero mortality and
serious injury rate, the plans are also to take into account the
economics of the involved fisheries and the technological limitations
for achieving the goal. Viewed in this way, the zero mortality rate
goal is not intractable but simply requires continued vigilance to
reduce mortality and serious injury to the greatest extent possible,
keeping in mind competing economic and technological factors. When
viewed in this light, we believe that a more appropriate
characterization of the rationale behind the ZMRG is a belief that,
even when removals from a stock incidental to commercial fishing
operations can be tolerated at the population level, everything that
reasonably can be done to reduce the mortality and serious injury of
individual marine mammals should be done.
The zero mortality rate goal is consistent with a precautionary
approach to the extent that it provides a level of insurance against
unknown sources of human-related mortality and serious injury.
Management of marine mammals requires judgments about their status and
tolerance for human-related mortality. Some of these judgments will
underestimate the significance of human-related mortality and, under
such circumstances, successful efforts to approach a zero mortality and
serious injury rate will provide a buffer against adverse levels of
impact. In that sense, the admonition to approach a zero mortality and
serious injury rate is consistent with and fosters a precautionary
approach to marine mammal management.
Threats to Marine Mammals:
1. There seem to be many emerging threats to marine mammals that
were not considered 25 years ago when the original act was written.
Do you think it would be helpful for the Marine Mammal
Commission to report on the magnitude of emerging and existing threats
to marine mammals?
Is it practical to believe that we can address these
threats, and if so, what threats should be priorities for action?
This might include identifying data gaps, coming up with
research plans and evaluating the health of marine mammal stocks in the
wild as relates to other environmental parameters.
Would such an undertaking be within the scope and purview
of the MMC?
Response: In its testimony before various Congressional committees
over the past few years, the Marine Mammal Commission has noted the
importance of a proactive, anticipatory approach to research and
conservation of living marine resources, including marine mammals. By
using such an approach, managers can not only reach more effective
conservation decisions that balance the needs of people with protection
of resources, but can also make cost-effective decisions before the
onset of crises or litigation. Therefore, with Congressional support,
the Commission organized and held a consultation entitled ``Future
Directions in Marine Mammal Research'' on 4-7 August 2003 in Portland,
Oregon. The consultation involved 54 scientists and other experts from
six countries, who were charged with the following tasks:
review the status and trends of various anthropogenic and
natural threats to marine mammals;
articulate comprehensive research recommendations to
further our understanding of such threats and methods to mitigate them;
and
encourage new, creative, interdisciplinary approaches for
resolving current and future issues related to conservation of marine
mammals and their environment.
To facilitate discussions at the consultation, the Commission
contracted for several background documents that would summarize the
status of important ongoing or future-oriented issues that could
compromise effective conservation of marine mammals. The issues
considered by the documents and the participants included, but were not
limited to the following:
infectious diseases,
underwater sound levels and types,
chemical contamination,
harmful algal blooms,
dead (anoxic/hypoxic) zones,
effects of expanding populations of some pinnipeds,
bycatch, depredation and other direct interactions with
fisheries,
indirect effects (e.g., competition) with fisheries,
habitat transformation,
environmental change,
effects of human population growth,
how to define appropriate conservation units in the face
of scientific uncertainty, and
how to better develop regulatory standards and decision
rules for management.
We expect to have the initial report of the consultation ready
shortly. This will be followed with a more detailed report, which we
plan to have available a few months later. In addition, we are
exploring ways to publish a peer-reviewed version of the background
documents prepared for the consultation. Such a publication is
anticipated in a year or two.
The Commission appreciates the support of Congress as it endeavors
to take this and other proactive steps to facilitate marine mammal
conservation. Participants at the future directions meeting viewed the
consultation to be a great success. The Commission is anxious to
provide a summary to Congress soon.
Has the MMC ever investigated the growing incidence of
ship strikes? Would the MMC support a mandate to convene a panel to
recommend steps to reduce ship strikes and report to Congress in 2
years?
Response: In 1999 the Commission asked a member of its staff to
organize and carry out a review aimed at compiling and evaluating
available information on collisions between ships and whales. The
result was a paper published in early January 2001 (attached) in Marine
Mammal Science. To date, this is the most comprehensive summary and
evaluation of information available on the subject.
At present we do not believe that convening a panel to recommend
steps to reduce ship strikes is necessary. By far the most pressing
need with regard to this issue concerns collisions with North Atlantic
right whales. A report putting forth recommendations to mitigate
collisions with right whales was completed in the late summer of 2001
and provided to the National Marine Fisheries Service at that time. The
report, entitled ``Recommended Measures to Reduce Ship Strikes of North
Atlantic Right Whales'' by Bruce Russell, was prepared under the
auspices of two regional right whale recovery plan implementation teams
with funding provided largely by the National Marine Fisheries Service
and the International Fund for Animal Welfare with some seed money
provided by the Marine Mammal Commission. In our view, that report
provides a good set of recommended actions and solid basis for
developing regulatory and non-regulatory management actions. We do not
believe a panel would be necessary at this time to review those
recommendations or develop a new set recommendations. The National
Marine Fisheries Service has been developing a proposed management
program based on that report. What is most important now is for the
Service to move ahead expeditiously with the process of developing and
implementing those actions.
Should there be a similar directed program on ocean noise
that would be mandated under the MMC or another program such as the
National Oceanographic Partnership Program?
Response: In response to a congressional directive to the
Commission enacted in March 2003, the Commission is organizing a series
of meetings to bring together representatives of the environmental
community, ocean industries that produce sound in the marine
environment, the academic community, and key federal management
agencies to review and identify priority research and management needs
bearing on the effects of anthropogenic sound on marine mammals. The
Commission has recently completed the process for contracting with a
professional facilitation team to convene those meetings, and we expect
the first of three or four meetings to be held early in 2004. As
research priorities are examined during the course of this policy
dialogue, we expect that the need for developing a directed program on
ocean noise will be considered. At this time, the Commission has not
formed an opinion on how best to proceed with regard to such a directed
program. We believe it would be appropriate to await results of the
impending policy dialogue before making recommendations on such an
important issue.
Captive Animal Welfare:
The 1994 changes to the Marine Mammal Protection Act gave APHIS the
authority for captive marine mammal welfare inspections.
Has APHIS demonstrated requisite expertise and ability to
inspect and oversee marine mammals in captivity?
Response: APHIS inspections are conducted by veterinarians on a
regional basis. These inspections cover a broad range of facilities and
species. As such, many of the inspectors, although trained
veterinarians, are not marine mammal specialists. Because marine
mammals are unlike the other animals covered under the Animal Welfare
Act, all of which are terrestrial animals, the Marine Mammal Commission
in 1995 recommended that APHIS develop a core group of veterinarians,
with specialized training, to conduct all inspections of marine mammal
facilities. APHIS declined to adopt this recommendation, opting instead
to hold periodic training sessions to familiarize its general corps of
inspectors with legislation, regulations, and issues specific to marine
mammals. While this is an improvement, APHIS does not employ marine
mammal specialists to inspect marine mammal facilities.
Marine mammal specialists are important when the applicable
standards are imprecise, requiring the inspector to judge the health,
comfort, and well-being of the animals. For example, under the
applicable standards, there is no clear-cut demarcation of what
constitutes the acceptable temperature ranges for maintaining the
various species of marine mammals. Rather, the standards require only
that air and water temperatures be maintained within a range that does
not adversely affect a marine mammal's health or comfort. Without
specialized knowledge about the life histories of marine mammals,
possible signs of compromised health or discomfort, or the literature
related to the veterinary medicine and husbandry of marine mammals, an
inspector may not be well situated make these and other similar
determinations. The problems with having such subjective standards are
highlighted by the recent events surrounding the maintenance of polar
bears at a facility in Puerto Rico, a situation in which there were
decidedly different views on the health status of the animals and the
stress placed on them by exposure to temperatures well in excess of
those normally encountered by the species.
How many inspectors does APHIS deploy to inspect display
facilities?
Response: The Commission understands that APHIS has 100 field
inspector positions and is planning to add several more in the coming
fiscal year. We also understand that, in addition to its field
inspectors, APHIS has additional staff, including nine supervisory
animal care specialists, at its regional offices and headquarters.
To your knowledge, has APHIS promulgated marine mammal-
specific care standards for captive marine mammals? And have such
standards been provided to the public?
Response: APHIS established standards for the humane handling,
care, treatment, and transportation of marine mammals under the Animal
Welfare Act in 1979. These are codified at 9 C.F.R. Sec. 3.100 et seq.
As such, the standards are available to the public. Although the
standards were amended slightly in the mid-1980s, they have not been
comprehensively revised to reflect advances in veterinary science and
animal husbandry in the past 25 years. For this reason, the Marine
Mammal Commission, beginning in 1990, recommended that APHIS along with
the National Marine Fisheries Service, the Fish and Wildlife Service,
and the Commission work cooperatively to review and update the
standards. Ultimately, APHIS decided to revise the standards using
negotiated rulemaking. A final rule amending certain portions of the
marine mammal standards was published in 2001. However, only the less
contentious portions of the standards were revised. APHIS decided to
consider amendments to the remaining parts using traditional notice and
comment procedures. APHIS originally indicated that it would publish a
proposed rule by mid-2000. Instead, however, APHIS published an advance
notice of proposed rulemaking in 2002, soliciting additional input on
the remaining parts, including (1) whether maximum temperature ranges
for air and water should be established for each species; (2) whether
noise thresholds should be established for each species; (3) what
criteria should be considered when determining space requirements for
each species; (4) whether the average adult lengths used to determine
space requirements under the existing regulations should be revised;
(5) whether minimum water depths should be established for each
species; (6) whether minimum width or longest straight line swimming
distance is more important; (7) whether there are other interactive
activities not identified by the Service in its notice; and (8) how
interactive activities should be regulated. Thus, although there has
been some progress, it has been 13 years since APHIS initially
committed to updating its marine mammal standards, and we have yet to
see a proposed rule to amend the most important sections.
Is there any oversight or reporting requirements for
APHIS in the discharge of this responsibility? Should APHIS be required
to report annually to Congress?
Response: Up until December 1999, when the Federal Reports
Elimination and Sunset Act of 1995 took effect, APHIS was required to
submit an annual report on its activities under the Animal Welfare Act
concerning all animals (the report is not specific to marine mammals)
regulated under the Act. Specifically, the Act required that ``[n]ot
later than March of each year, the Secretary [of Agriculture] shall
submit to the President of the Senate and the Speaker of the House of
Representatives a comprehensive and detailed written report with
respect to--(1) the identification of all research facilities,
exhibitors, and other persons and establishments licensed by the
Secretary under section 3 and section 12 of this Act; (2) the nature
and place of all investigations and inspections conducted by the
Secretary under section 16 of this Act, and all reports received by the
Secretary under section 13 of this Act; (3) recommendations for
legislation to improve the administration of this Act or any provision
thereof; and (4) recommendations and conclusions concerning the
aircraft environment as it relates to the carriage of live animals in
air transportation.'' The Commission understands that APHIS is
currently exploring different mechanisms for continuing to provide such
information to Congress, stakeholders, and the public.
With enactment of the 1994 MMPA amendments, responsibility for
virtually all matters related to the care and maintenance of marine
mammals was placed under the sole jurisdiction of APHIS under the
Animal Welfare Act. This vests primary oversight for such matters in
Congress to the Agriculture committees, which may not have much
expertise or focus on marine mammal issues. Thus, the Commission
believes that it is important for the committees with primary
jurisdiction for marine mammal issues to continue to monitor actions
taken under the Animal Welfare Act as they relate to this specialized
group of animals.
The public display community has complained that NOAA
Fisheries deliberately misinterpreted the intent of Congress in 1994 in
its promulgation of regulations regarding permits allowing the
transport and exchange of captive marine mammals.
Is this complaint valid?
Response: Although the Marine Mammal Commission did not agree with
much of the discussion in the proposed rule regarding exports of marine
mammals for purposes of public display, we do not believe that the NMFS
``deliberately misinterpreted'' the intent of Congress in passing the
1994 amendments to the MMPA. In this regard, several of the provisions
of section 104 of the Act that pertain to exports are unclear, and some
are internally inconsistent. A full discussion of these provisions, the
possible interpretations, and the Commission's recommended
reconciliation of conflicting provisions are provided in the discussion
on pages 2 through 8 of the Commission's 3 April 2002 letter (attached)
commenting on the Service's public display rule.
We also call your attention to the observation made by the
Commission on page 8 of that letter suggesting that other schemes for
authorizing exports of marine mammals to foreign facilities may be more
workable than the current one and the recommendation that the Service
work with the interested parties to design a system that (1) achieves
the goal of providing reasonable assurance that marine mammals exported
from the United States will be well cared for throughout the duration
of their maintenance in captivity, (2) more realistically reflects the
ability of the Service and other U.S. agencies to identify and correct
problems at foreign facilities, and (3) does not establish unnecessary
barriers to the exchange of marine mammals among qualified facilities.
Captive release prohibition:
H.R. 2693 includes a prohibition on releasing captive marine
mammals into the wild.
Considering the very limited space available to care for
stranded marine mammals, could such a change create a situation where
animals are held in captivity permanently regardless of their health
and survival?
Response: No. The captive release provision included as section 502
of the Administration bill is not absolute. For example, it would not
apply to rescued and rehabilitated marine mammals captured and
maintained under the authority of section 109(h) of the Act. It would
only apply to the release of long-term captive marine mammals, which
present special problems associated with their ability to adapt
successfully to life in the wild and pose possible threats to wild
populations. Thus, it is only those rehabilitated marine mammals that
do not meet the release criteria developed by the NMFS that would not
qualify for release.
As for marine mammals being maintained in captivity under other
authorities (e.g., a public display permit), release would still be
possible. It would, however, require authorization under a scientific
research or species enhancement permit that presumably would be
conditioned to ensure that the animal had been properly prepared for
return to the wild and that monitoring would be adequate to track the
fate of the animal.
Would this provision affect NOAA Fisheries' release of
the five pilot whales that were stranded on April 18, 2003?
Response: The provision would not be applicable to the five pilot
whales, which were rescued and recently released under the authority of
section 109(h).
Does this provision require a US, citizen to apply for a
NOAA Fisheries permit to release a marine mammal in other countries'
EEZ (would this apply to Keiko's release in Norway)?
Response: Although not explicit on the face of the proposed
amendment, applicable law provides that, absent some specific
indication of Congressional intent to the contrary, U.S. statutes are
not given extraterritorial applicability. Thus, there is no reason to
believe that, unless Congress provides otherwise, this prohibition
would be applicable to the release of marine mammals outside of waters
subject to U.S. jurisdiction. This being said, the situation with
respect to Keiko is more complicated. Keiko was imported into the
United States and maintained in captivity under a U.S. public display
permit. That permit required that, before release of the animal to the
wild could be attempted, a scientific research permit governing the
release had to be obtained. This permit was issued prior to enactment
of the 1994 MMPA amendments, which made several changes to the Act's
permit provisions. It is unclear whether the permit conditions
concerning the release of Keiko remain applicable in light of those
amendments and the subsequent export of the whale to Iceland and
Norway. If they remain in force, the facility maintaining Keiko may
have a continuing obligation to obtain a scientific research permit
authorizing the release irrespective of the proposed captive release
prohibition.
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