[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
HEARING ON THE MARINE MAMMAL PROTECTION ACT (SECTIONS 118 AND 119)
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
__________
APRIL 6, 2000, WASHINGTON, DC.
__________
Serial No. 106-79
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
or
Committee address: http://www.house.gov/resources
______
U.S. GOVERNMENT PRINTING OFFICE
66-525 CC WASHINGTON : 2000
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado ENI F.H. FALEOMAVAEGA, American
JOHN T. DOOLITTLE, California Samoa
WAYNE T. GILCHREST, Maryland NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH-HAGE, Idaho CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah ADAM SMITH, Washington
KEVIN BRADY, Texas CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania DONNA MC CHRISTENSEN, Virgin
RICK HILL, Montana Islands
BOB SCHAFFER, Colorado RON KIND, Wisconsin
JIM GIBBONS, Nevada JAY INSLEE, Washington
MARK E. SOUDER, Indiana GRACE F. NAPOLITANO, California
GREG WALDEN, Oregon TOM UDALL, New Mexico
DON SHERWOOD, Pennsylvania MARK UDALL, Colorado
ROBIN HAYES, North Carolina JOSEPH CROWLEY, New York
MIKE SIMPSON, Idaho RUSH D. HOLT, New Jersey
THOMAS G. TANCREDO, Colorado
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
------
Subcommittee on Fisheries Conservation, Wildlife and Oceans
JIM SAXTON, New Jersey, Chairman
W.J. (BILLY) TAUZIN, Louisiana ENI F.H. FALEOMAVAEGA, American
JAMES V. HANSEN, Utah Samoa
WAYNE T. GILCHREST, Maryland BRUCE F. VENTO, Minnesota
RICHARD W. POMBO, California PETER A. DeFAZIO, Oregon
WALTER B. JONES, Jr., North NEIL ABERCROMBIE, Hawaii
Carolina SOLOMON P. ORTIZ, Texas
MARK E. SOUDER, Indiana FRANK PALLONE, Jr., New Jersey
ROBIN HAYES, North Carolina CARLOS A. ROMERO-BARCELO, Puerto
MIKE SIMPSON, Idaho Rico
ADAM SMITH, Washington
Harry Burroughs, Staff Director
Dave Whaley, Legislative Staff
Jean Flemma, Democratic Legislative Staff
C O N T E N T S
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Page
Hearing held Thursday, April 6, 2000, Section 118................ 1
Statement of Members:
Faleomavaega, Hon. Eni F. H., a Delegate in Congress from the
Territory of the American Samoa, prepared statement of..... 146
Saxton, Hon. Jim, a Representative in Congress from the State
of New Jersey.............................................. 1
Prepared statement of.................................... 2
Statement of Witnesses:
Calambokidis, John, Cascadia Research Collective............. 121
Prepared statement of.................................... 123
Foster, Bill, Mid-Atlantic Coastal Gillnet Industry.......... 90
Prepared statement of.................................... 92
Reynolds, PH.D., John E., Chairman, Marine Mammal Commission. 27
Prepared statement of.................................... 29
Rosenberg, PH.D., Andrew, Deputy Assistant Administrator for
Fisheries, National Marine Fisheries Service............... 8
Prepared statement of.................................... 11
White, Pat, Maine Lobstermen's Association................... 45
Prepared statement of.................................... 47
Young, Nina, Center for Marine Conservation.................. 50
Prepared statement of.................................... 52
Young, Sharon, Humane Society of the United States........... 93
Prepared statement of.................................... 95
Hearing held Thursday, April 6, 2000, Section 119................ 149
Statement of Members:
Faleomavaega, Hon. Eni F. H., a Delegate in Congress from the
Territory of the American Samoa, prepared statement of..... 265
Young, Hon. Don, a Representative in Congress from the State
of Alaska; Chairman, Committee on Resources................ 149
Prepared statement of.................................... 151
Statement of Witnesses:
Allen, Mr. David B., Regional Director, U.S. Fish and
Wildlife Service, Alaska................................... 157
Prepared statement of.................................... 160
Dalton, Penelope, Assistant Administrator for Fisheries,
National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce.... 165
Prepared statement of.................................... 168
Daniel, Alex, prepared statement of.......................... 236
Jack, Ms. Lianna, Executive Director, the Alaska Sea Otter
and Steller Sea Lion Commission............................ 218
Prepared statement of.................................... 220
Johnson, Mr. Charles, Alaska Nanuuq Commission on MMPA Co-
Management................................................. 195
Prepared statement of.................................... 197
Osterback, Mr. Alvin D., Aleut Marine Mammal Commission...... 213
Prepared statement of.................................... 215
Pungowiyi, Mr. Caleb, Chairman, MMPA Reauthorization
Committee, Indigenous People's Council for Marine Animals,
Kotzebue, Alaska........................................... 178
Prepared statement of.................................... 182
Riedel, Ms. Monica, Executive Director and CEO, Alaska Native
Harbor Seal Commission..................................... 204
Prepared statement of.................................... 206
Sparck, Ms. Michelle, pepared statement of................... 243
HEARING ON: SECTION 118 OF THE MARINE MAMMAL PROTECTION ACT
------
House of Representatives,
Subcommittee on Fisheries Conservation,
Wildlife and Oceans
Committee on Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 10:15 a.m., in
room 1334, Longworth House Office Building, Hon. Jim Saxton
(chairman of the subcommittee) presiding.
STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF NEW JERSEY
Mr. Saxton. The Subcommittee on Fisheries Conservation,
Wildlife and Oceans will come to order. Today we are discussing
Section 118 of the Mammal Protection Act. The Secretary of
Commerce is required to use take reduction teams when
developing Take Reduction Plans. The Plans are supposed to
reduce the take of marine mammals to insignificant levels. To
date, five teams have been convened, the Gulf of Maine Harbor
Porpoise Team, the Mid-Atlantic Coastal Gillnet Team, the
Atlantic Offshore Cetacean Team, the Atlantic Large Whale Team,
and the Pacific Offshore Cetacean Team.
Members of the Take Teams are required to be knowledgeable
of fisheries and they have included fishermen, environmental
representatives, State fish and game personnel, Regional
Council members, Scientists and NMFS personnel. I am interested
in hearing from our witnesses today on the take reduction team
process and whether NMFS implementation of the appropriate
Plans have been successful in reducing the take of marine
mammals. I would now ask unanimous consent that all
subcommittee members be permitted to include their opening
statements in the record without objection.
I would now like to introduce our first panel of witnesses.
On panel one we have Dr. Andrew Rosenberg, Deputy Assistant
Administrator for Fisheries, NMFS, and Dr. John E. Reynolds,
Chairman of the Marine Mammal Commission. If you gentlemen
would like to take your place and let me remind you that our
committee rules, please limit your opening statements to 5
minutes and your entire statement will be recorded in the
record. Andy Rosenberg, you may begin as you see fit.
[Prepared statement of Mr. Saxton follows:]
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STATEMENTS OF ANDREW ROSENBERG, PH.D., DEPUTY ASSISTANT
ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE;
JOHN E. REYNOLDS, PH.D., CHAIRMAN, MARINE MAMMAL COMMISSION
STATEMENT OF ANDREW ROSENBERG
Mr. Rosenberg. Thank you very much, Mr. Chairman and
members of the subcommittee, and thank you for inviting me to
testify on Section 118 of the Marine Mammal Protection Act on
reducing takes of marine mammals incidental to commercial
fisheries. As you requested, I am here to discuss with you the
merits of the marine mammal take reduction process as well as
the positive impacts those take reduction plans and teams have
had on marine mammal conservation and management. My written
testimony, which is more extensive, of course, than my oral
remarks, will be submitted for the record with your permission.
To date, five take reduction teams have been established,
as you noted, Mr. Chairman, focusing on nine fisheries and 22
so-called strategic stocks of marine mammals, those stocks that
we view are in urgent need of attention. I will go through each
of the take reduction team plans in some detail. Again, more
detail is in the written testimony. The Harbor Porpoise Take
Reduction Plan combines recommendations developed by the Gulf
of Maine and Mid-Atlantic Take Reduction Teams in order to
reduce the take of harbor porpoise in fisheries to below the
stock's PBR level or potential biological removal level of 483
animals.
And in December 1998, NMFS published a final rule which
included some modification, minor modifications, of the team's
recommendations for closures in the Gulf of Maine and the use
of acoustic deterrent devices usually known as pingers to warn
the animals off from the nets. The Mid-Atlantic Harbor Porpoise
Take Reduction Team was formed a year later in 1997 to develop
a plan for reducing incidental take of Harbor Porpoise in Mid-
Atlantic coastal gillnet fisheries.
Although that team did not reach consensus, they did reach
agreement on several key measures which were submitted in a
report to NMFS and those measures have been included in the
overall take reduction plan that I mentioned was implemented as
a final rule. Those measures are specific to predominant
coastal gillnet fisheries for monkfish and dogfish in the Mid-
Atlantic. In 1998, the final rule implementing gear
modifications and net caps for large and small mesh gillnet
fisheries and short-term closures for large mesh gillnet
fisheries in the Mid-Atlantic were included then.
We convened both teams around the beginning of this year to
review progress and consider improvements in the Harbor
Porpoise take reduction plan and recommendations included
changes to fishing operations, pinger use, observer protocols
and information exchange as well as communication with the
team. The combined efforts of the Mid-Atlantic and Gulf of
Maine Harbor Porpoise take reduction team recommendations and
our implementation of those recommendations have led to
reductions in the Harbor Porpoise bycatch in the Northeast
gillnet fishery that is in the Gulf of Maine from approximately
1,400 animals taken in 1995 to less than 400 animals in 1998.
However, the total combined Harbor Porpoise bycatch for the
entire region, including the Gulf of Maine down through the
Mid-Atlantic is still greater than the PBR level because we
estimate that 450 animals approximately were taken in the Mid-
Atlantic region 1998 so we still have some work to do in both
regions to reduce Harbor Porpoise takes further throughout its
range. The Pacific Offshore Cetacean Take Reduction Plan was
prepared by a team that was formed in February 1996 to address
incidental takes of several whale and dolphin stocks in
California and Oregon, thresher shark/swordfish drift gillnet
fishery.
The final rule was implemented in October 1997 to address
the bycatch reduction recommendations. We reconvened the team
in 1998 and 1999 to examine additional data and see how well
the plan was working. The plan overall has reduced the take of
marine mammals by an order of magnitude from approximately 500
a year in the early 1990's to about 50 in 1998. However, we
still have concerns about a sperm whale because a sperm whale
was caught in a drift net in this region fairly recently and we
are reconvening the team to consider whether we need to take
additional measures. There will be another meeting of that team
in May of 2000.
The Atlantic Large Whale Take Reduction Team was
established in 1996 for developing a plan to reduce incidental
take of large whales in the South Atlantic shark gillnet
fishery, the Gulf of Maine and Mid-Atlantic lobster trap/pot
fishery, the Mid-Atlantic gillnet fishery, and the Gulf of
Maine sink gillnet fishery. That team did not reach a consensus
on a recommendation, however, did report to NMFS and NMFS
developed a final plan in implementing regulations. Based on a
range of recommendations and considerable public input the
interim final rule was published in 1997 and a final rule was
published in 1999 after additional public comment.
There were several whale species addressed in that plan. Of
greatest concern is the critically endangered Northern right
whale. Currently the potential biological removal level for
right whales is less than one animal per year. However, the
stock is at such a low level and in such critical circumstances
of course we don't want to take any right whales. We have
established an extensive series of disentanglement programs,
education programs, as well as gear modifications and are still
doing additional gear modification research to try to reduce
the take of right whales.
We have had some success with disentanglement efforts.
However, we have in fact still had some entanglements and have
additional work to do. The team reconvened in February of this
year and we will have another meeting in April to try to
address those concerns. Mr. Chairman, I have nearly come to the
end of my time. The last team, however, was the Atlantic
Offshore Cetacean Team. That plan was not implemented as a take
reduction plan but was implemented in the course of fishery
management regulations throughout the Northeast and Mid-
Atlantic with regard to offshore fisheries in that region.
Overall, we found that the take reduction process is very
complex and very controversial but the results have been very
positive. This is a very difficult area both for the agency,
the industry and the public to work through solutions to
complex problems. We feel that that has been very positive.
However, it has required a very significant amount of financial
and staff resources and a lot of time for the teams as well as
for the agency to develop workable solutions to some of these
problems.
We feel it has been successful although rather slower than
I think anyone would have wished. For us to expand the take
reduction team process, we would have to greatly expand our
resources available to provide information to the teams that is
probably the biggest stumbling block. Finally, we are convening
additional teams as possible including a team for Atlantic
bottlenose dolphins that we intend to convene this fall. We
will apply the lessons learned from the other teams to any new
teams we convene, of course, as well as the teams that are
ongoing. Thank you, Mr. Chairman, and I apologize for going
over my time.
[Prepared statement of Mr. Rosenberg follows:]
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Mr. Saxton. Thank you, Dr. Rosenberg. Dr. Reynolds, please.
STATEMENT OF JOHN E. REYNOLDS
Mr. Reynolds. Mr. Chairman, thank you for inviting the
Marine Mammal Commission to provide its views on the
effectiveness of Section 118 of the Marine Mammal Protection
Act in reducing mortality and serious injury of marine mammals
incidental to commercial fishing operations. To date the
National Marine Fisheries Service has, as has been noted,
established five take reduction teams, their establishment,
their recommendations, actions to implement take reduction
plans, and problems encountered are discussed in the detailed
statement I have submitted for the record.
Today I will confine my remarks to just some general
observations. The Commission believes that the provisions
pertaining to take reduction plans are fundamentally sound.
First, Section 118 appropriately places the highest priority on
developing plans for those stocks that are most affected by
commercial fisheries and for those fisheries with the highest
frequency of takes.
Second, it establishes biologically based goals for
reducing incident mortality and serious injury within specific
timeframes. Third, it involves all stakeholders and applied a
cooperative approach to developing take reduction plans thereby
ensuring consideration of all views and building support for
recommended remedial measures. Section 118 set an ambitious
schedule for developing and implementing take reduction plans.
Had all timing requirements been strictly adhered to mortality
and serious injury of marine mammals incidental to commercial
fisheries would have been reduced to below each stock's PBR
level by September, 1996, or in the case of Gulf of Main Harbor
Porpoises by April 1997.
By now we would be well on our way to meeting the 0
mortality rate goal. While there has been substantial progress
incidental mortality and serious injury still exceeds some
stock's PBR level and take reduction teams have yet to be
established for some strategic stocks. There appear to be
several reasons that it has taken longer to achieve the goals
of Section 118 than originally anticipated. First, the service
has finite resources to directive resolving marine mammal
fishery interaction problems.
Second, the issues are often complex and can affect the
livelihood of many fishermen. For instance, the Atlantic large
whale take reduction plan is to devise a way to eliminate
essentially all mortality and serious injury of Northern right
whales incident to the fisheries that use more than 3 million
lobster traps and make tens of thousands of gillnet sets within
the species range each year. For Gulf of Maine Harbor
Porpoises, the take reduction team has had to contend with
frequently shifting fishery closures implemented to protect
fish stocks as it tries to design effective marine mammal base
closures and gear requirements.
Third, efforts to develop and implement effective plans are
sometimes slowed by a need to conduct research and to
understand the nature of the interactions and to design and
test take reduction measures. For bottlenose dolphins research
has been aimed at even more rudimentary questions to resolve
uncertainties about stock structure. Although the service and
others involved in the process have made considerable progress
more remains to be done.
We are particularly concerned about the urgent need to
reduce incidental mortality of Northern right whales further.
For this stock, any mortality may significantly affect
prospects for recovery. We have urged the service to use its
emergency rulemaking authority to implement fishery closures to
eliminate hazardous fishing gear from critical habitat areas
during those times when right whales are most likely to be
present. There is also a pressing need to move forward with a
take reduction team for bottlenose dolphins.
I note one change to Section 118 that the commission
believes is warranted. Currently the Act requires take
reduction plans for all strategic stocks that interact with
categories one or two fisheries. But some stocks are considered
strategic solely because they are listed under the ESA or
depleted under the MMPA, not because of a significant level of
fishery-related mortality or serious injury. Where there is a
very low level of taking incident to fisheries the stocks would
benefit little from take reduction plans.
To ensure wise use of limited agency resources the
commission recommends that the Act be amended to specify that
plans need not be prepared for those strategic stocks for which
mortality and serious injury from fisheries are
inconsequential. As we begin to reduce fisheries-related
mortality and serious injury to biologically significant
levels, we should not lose sight of other significant threats
to marine mammals. For example, on average one Florida manatee
is hit and killed by a motorboat every four or 5 days.
Similarly, vessel strikes involving right whales present a
serious conservation problem, and we are also becoming
increasingly aware of the potentially significant adverse
effects of point and non-point source pollution which may
affect not only marine mammals but other important components
of marine ecosystems so solving the fisheries questions won't
necessarily protect all marine mammal stocks. Finally, most
research and conservation actions under the Marine Mammal
Protection Act are designed at present to respond to acute
often controversial conservation issues.
I believe we need to consider other approaches that respond
not only to critical current situations but to recognize the
need for broad-based interdisciplinary anticipatory research
that will enable us to address potential conservation problems
before they become serious. I would be pleased to explore these
issues with you and to respond to any questions you may have.
Thank you.
[Prepared statement of Mr. Reynolds follows:]
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Mr. Saxton. Thank you very much. Thank you both. I have one
question which has troubled some people who have been involved
in the process. Take reduction teams assemble themselves and
examine biological sciences and other factors that are involved
in a fishery and then make recommendations based upon some
significant amount of time and effort and with all good
intentions and submit their recommendations to NMFS, higher up
NMFS officials who apparently were not part of the take
reduction teams who don't have the ability and take advantage
of the opportunity to change recommendations without having
been part of the process. At least that is what is said to me.
Is that the case and do you think that that part of the
changes and the recommendations serve to encourage take
reduction teams to continue to do serious work? Dr. Rosenberg.
Mr. Rosenberg. Thank you, Mr. Chairman. First of all, I
think that is not entirely the case although it is true that
senior managers within the agency are not members of the take
reduction team. Of course, we have quite a lot of staff who
attend the team and participate in providing information to the
team and so senior policymakers are fully briefed on the team's
discussions and the issues that arise. Second, in several
cases, for example, the large whale take reduction team, the
team did not come to consensus.
And so NMFS still must implement a take reduction plan to
meet the responsibilities under the law so in many cases we
have to make a decision on the actual implementation of the
plan even if we don't have full consensus on the team. And,
third, because the agency is accountable under the law and
certainly in court and in many of these plans we may have been
sued by one or more parties on various sides we have to
determine whether the actual recommendations are in comport
with the law and that is not something that generally the team
analyzes so we need to evaluate the plan as submitted or
recommendations if they don't come to full consensus for its
overall comport with the law, which we do.
We only make those changes that we feel are necessary in
order to ensure that we are meeting the legal responsibilities
and can defend it in court.
Mr. Saxton. Dr. Reynolds, could you respond to the same
question, please?
Mr. Reynolds. Sure. Dr. Rosenberg's agency is most
intimately involved with the process and I agree with his
response. I guess coming at it from a somewhat different
direction, as you indicated, Mr. Saxton, the process is a slow
and painstaking one in which the various entities that are
involved need to build trust and need to communicate well with
one another. And I think to the greatest extent possible it is
important that the appropriate players stay in touch with one
another and that the communication be as open as possible on
all the issues.
I think that if outside opinions are being superimposed
that I understand as Dr. Rosenberg said that on occasion there
are legal questions and all that come up that simply cause
differences but I think it is important that you build an
esprit de corps within the team and that they be able to move
forward as much as possible as a unit to address some of these
really complex problems.
Mr. Saxton. Well, obviously there is a need for final take
reduction plans to be workable and to have as much thought put
into the development and implementation of them as possible. I
guess my question is do you think that an interaction with
higher level NMFS personnel and perhaps legal counsel from NMFS
whether the process would be better served if those
interactions took place at an earlier time, perhaps during the
time the take reduction team is studying and formulating
recommendations. Dr. Rosenberg.
Mr. Rosenberg. I think that that is a very important point
and something that we have begun to address and probably need
to focus some more attention on. I have attended large whale
take reduction team meetings and Harbor Porpoise take reduction
team meetings and we certainly to the extent possible having
legal counsel available during the team meetings although that
is not possible in every case. But we have heard back from the
teams in our survey of team members that the two things they
want more of, I would have to say, is they all want more
information on which to base their recommendations, and we do
the best we can in terms of providing such information and
trying to do a better job of it and they want more
communication with the agency back and forth preferably as high
a level as they can so we will try to work toward those goals.
Mr. Saxton. Now you say that an effort is going to be made
or is being made to implement a process where these
decisionmakers would be part of the early on process where
possible. Where it is not possible, is it also an alternative
you have looked at to have some kind of a review on an ongoing
basis if it is not possible for them to actually be part of the
meeting and the discussion. At least it seems to me
difficulties which may arise along the way ought to be pointed
out to the team during its deliberations rather than to wait
until their recommendations have been made and then just
arbitrarily change them.
Mr. Rosenberg. I think we invariably do point out issues of
concern during the process and sometimes the teams take those
on board and sometimes they do not. That is their prerogative,
of course. That is why we have both policy staff and scientific
staff attending the team meetings and legal staff when we can.
With regard to senior managers attending, the regional
administrators often attend for a portion of the meeting and as
I have noted I have attended some and I believe Ms. Dalton has
attended possibly one of the meetings in the past year.
But again we have heard from the team members. They want to
have more interactive feedback along the way and I think we
will try to build on that in the future and improve that
process.
Mr. Saxton. Dr. Reynolds, do you have anything to add?
Mr. Reynolds. Yes. I am sorry. I misunderstood what you
were asking at first. I agree that it would be very useful to
bring as many people into the mix within reason as possible. I
think that to keep things on the floor at the meetings is a
very useful exercise. I would add that one of the constraints
on development and maintaining momentum with the take reduction
teams that both Dr. Rosenberg and I mentioned is the lack of
available agency resources and so I think that--I think what
you are suggesting makes all the sense in the world but it will
stretch something that is already in finite supply. I think
that needs to be looked at.
Mr. Saxton. Thank you very much. Mr. Gilchrest.
Mr. Gilchrest. Thank you, Mr. Chairman. I guess following
up on the line of questions from the Chairman and just so it is
clear in my mind, how many take reduction teams are there?
Mr. Rosenberg. There have been five.
Mr. Gilchrest. There are five take reduction teams. How
many on each team, how many people?
Mr. Rosenberg. I would have to look it up.
Mr. Gilchrest. Are there five people, ten people?
Mr. Rosenberg. No, it is quite a bit larger than that.
Mr. Gilchrest. Twenty people?
Mr. Rosenberg. Between 10 and 20.
Mr. Reynolds. 20 to 40.
Mr. Gilchrest. 20 to 40 people. Who are they? Who makes up
these teams?
Mr. Rosenberg. The teams are drawn from interested members
of industry, sometimes academia conservation groups from the
region, usually from the region that is affected by the
fishery. Almost invariably say in the Northeast they will be
people within that area, fairly balanced between conservation
organizations and public interest groups and industry groups
directly.
Mr. Gilchrest. And so these five teams represent how many
fisheries?
Mr. Rosenberg. There are nine fisheries that are included
under the five teams and 22 stocks of marine mammal.
Mr. Gilchrest. And how many fisheries have plans now?
Mr. Rosenberg. Well, one of the take reduction teams, the
Atlantic Offshore Cetacean Team, we didn't implement a specific
take reduction plan but the elements were addressed in other
portions of fisheries management so you could say in a form all
nine fisheries have--actions have been taken to reduce take in
all of those nine fisheries. I believe that is correct. And we
will move forward with additional fisheries as we can.
Mr. Gilchrest. And so there is some implementation in each
of the nine fisheries?
Mr. Rosenberg. Yes.
Mr. Gilchrest. Where are the nine fisheries?
Mr. Rosenberg. There is one set of fisheries----
Mr. Gilchrest. Are they all on the East Coast?
Mr. Rosenberg. No. One is on the Pacific Coast. The Pacific
Offshore Cetacean Team addressed the Oregon and California
gillnet fisheries and the rest are on the Atlantic Coast from
Maine to Florida but primarily in the Northeast states down
through the Mid-Atlantic.
Mr. Gilchrest. So when the implementation of those plans--
when those plans have been implemented, is there a move to the
Gulf of Mexico, are there any problems with marine mammals in
the Gulf of Mexico?
Mr. Rosenberg. There are and we are in the process of
trying to convene a team on bottlenose dolphins. It is rather
difficult because the information is quite slim. That would
include both the South Atlantic coast as well as the Gulf Coast
in that team and there are some scientific questions on how the
stocks of bottlenose dolphins relate in different areas.
Mr. Gilchrest. Now when the teams get together and do their
studying and collect data and come up with a consensus I guess
at least for a plan. What is the interaction with the fisheries
management council for that particular region with the take
reduction teams? Is there much dialog between the management
council?
Mr. Rosenberg. There is dialog although it is up to each
individual council to decide and the team to decide the form of
that. For example, in New England for the Gulf of Maine gillnet
fishery there was a marine mammal committee on the council that
specifically asked for reports on both the gillnet fishery for
Harbor Porpoise as well as the large whale take reduction plan.
There were regular reports to the council from the take
reduction team and at the point of implementation of the Harbor
Porpoise plan there was substantial discussion over the
closures that were being implemented for fish protection in the
Gulf of Maine or Northeast areas that would need it for Harbor
Porpoise protection.
Mr. Gilchrest. I would imagine that you would encourage a
dialog between the take reduction team and the management
council because I guess inevitably there is going to be an
effect on the fish stock because of the plan.
Mr. Rosenberg. That is certainly the case and in fact we
would like--we have implemented measures under not only the
Marine Mammal Protection Act itself but also under the
Magnuson-Stevens Act measures that serve to protect marine
mammals specifically. Harbor Porpoise measures were implemented
under Magnuson-Stevens which specifically includes the council
process. For some of the other fisheries the same thing so
there is an intimate relationship. However, it varies a little
bit from council to council depending on their operating
desires.
Mr. Gilchrest. I see. Thank you. Dr. Reynolds, let me see
if I can find the question. You made a comment that there has
not been take reduction teams appointed for several fisheries.
Is that Alaska or the Gulf of Mexico or other areas?
Mr. Reynolds. I believe what I said was that there are--
there was a need for a take reduction team for some strategic
stocks referring to the marine mammals that needed to be looked
at and specifically the one----
Mr. Gilchrest. What would they be and where would----
Mr. Reynolds. The one for which I think the most urgent
need exists, and again Dr. Rosenberg referred to this as
something that is moving forward for bottlenose dolphins in the
southeastern United States.
Mr. Gilchrest. I guess my time is up. Thank you, Mr.
Chairman.
Mr. Saxton. Thank you, Mr. Gilchrest.
Mr. Pombo. No questions.
Mr. Saxton. We have no further questions at this time. I
thank both of you for being with us today. This is an extremely
interesting and serious subject and we appreciate very much
your attention----
Mr. Gilchrest. Mr. Chairman, could I just ask one more
question since the gentleman from California yielded his time?
Mr. Saxton. Sure.
Mr. Gilchrest. Thank you. Dr. Reynolds, you made a comment
about the full range of issues that affect marine mammals from
big steam ship vessels coming from Europe for the right whales,
recreational boaters for the manatee, point and non-point
source pollution for a number of these species. Is it your
feeling--I don't know whose area of responsibility this would
be. If you look at--since we are discussing take reduction
teams, is it your recommendation that these teams given the
full big picture of marine mammals should also include these
things into their plans?
Mr. Reynolds. Not necessarily. If you included all the
possible factors that were affecting certain stocks and brought
in all the appropriate stakeholders, you would probably have an
unmanageably large group that would probably not make much
progress. What the intent of my statement was to keep before
you the thought that yes, progress is being made in terms of
incidental take of marine mammals associated with commercial
fisheries but incidental to other human activities marine
mammals get taken and some stocks get taken in far larger
numbers.
Even endangered species like manatees and right whales get
taken more by non-commercial fishery-related activities than
they do by the commercial fisheries. And so even though we are
making nice progress perhaps with certain of the stocks and
certain of the issues there is a long way to go still to insure
the safety of many of the stocks and species of marine mammals.
I think that with the boating in Florida, for example, that
there is a recovery plan in place. A new iteration of it is
being developed right now but that recovery plan deals with a
gamut of issues.
I think that conceivably for manatees in Florida a process
similar to a take reduction process for boats might be very
effective. It is a very tough question though.
Mr. Gilchrest. Thank you. Dr. Rosenberg.
Mr. Rosenberg. Thank you, Congressman. I just wanted to add
that some of the other factors affecting marine mammal stocks
that we do have other teams or working groups, for example, to
deal with the ship strike issue on large whales there is a
recovery plan that is--a recovery team that is working toward
developing measures to reduce ship strikes. There is a
notification system that has been developed and we have
implemented so shipping knows where the whales are located.
Similarly for other kinds of threats to marine mammals, we
do have other programs. We do not include them in the take
reduction process because we want to focus that on fishing
effects according to Section 118. On pollution we have the
marine mammal health and stranding program in cooperation with
National Ocean Service that tries to at least investigate
sources of mortality of animals that appear that on the
beaches, stranded on the beaches and so on.
Mr. Gilchrest. Thank you. I was just curious about--Dr.
Rosenberg, I think it was you that mentioned warning devices.
Is that a loud horn? What are warning devices?
Mr. Rosenberg. I am sorry. Acoustic deterrent devices that
are used on gillnets. Essentially what they are is a sealed
tube that has a little device that make a click at a certain
frequency and sound level. It is battery operated and it is
attached to the nets and apparently marine mammals because they
locate by sound, echo locate, they serve as a warning device
and have reduced the take in some fisheries for some kinds of
marine mammals successfully because it enables the animals to
actually see the net better.
Some people have--the information is a little bit
equivocal. Some people have claimed that other mammals, those
same devices seem to serve as a dinner bell, here is a net with
fish in it, come and get it, and that has had a negative impact
but overall the impact has been very positive on helping marine
mammals avoid the fishing gear and we have seen reductions in
take.
Mr. Gilchrest. Thank you very much. Thank you, Mr.
Chairman.
Mr. Saxton. The gentlemen, thank you again for being with
us. We appreciate it very much. We will now move on to our
second panel. On panel two we have Pat White of the Maine
Lobstermen's Association, Nina Young from the Center for Marine
Conservation, Bill Foster of the Mid-Atlantic Coastal Gillnet
Industry, Sharon Young of the Humane Society of the U.S., and
John Calambokidis of the Cascadia Research Collective.
I would just like to point out that we have a 5-minute rule
that we try to go by and your written testimony in its entirety
will be included in the record. Mr. White, you may begin as you
find yourself ready.
STATEMENTS OF PAT WHITE, MAINE LOBSTERMEN'S ASSOCIATION; NINA
YOUNG, CENTER FOR MARINE CONSERVATION; BILL FOSTER, MID-
ATLANTIC COASTAL GILLNET INDUSTRY; SHARON YOUNG, HUMANE SOCIETY
OF THE UNITED STATES; JOHN CALAMBOKIDIS, CASCADIA RESEARCH
COLLECTIVE
STATEMENT OF PAT WHITE
Mr. White. Good morning, Mr. Chairman, and members of the
subcommittee. I address you today as a member of the Large
Whale Take Reduction Team initiated by the National Marine
Fisheries Service Office of Protected Resources under the
authority of the Marine Mammal Protection Act, Section 118. In
addition, I am Executive Director of The Maine Lobstermen's
Association, as well as a commercial lobsterman.
I strongly support the concept and intent of the TRT as
established in the 1994 reauthorization of the MMPA. In the
case of the Large Whale Take Reduction Team, however, the
process has been flawed and the results ineffective, both in
preventing entanglements of large whales in fishing gear and
giving the fishing industry the tools, techniques and support
necessary to meet the goals of the take reduction plan.
It is the clear intent of the MMPA that the goal of a TRP
is both to protect the marine mammals and to give fishermen the
skills and technologies needed to continue their chosen
professions. This intent is spelled out in Section 118. To
date, this necessary action and support has not been
sufficiently forthcoming from NMFS. Their inability to
effectively implement the key provisions of MMPA has placed
both large whales and the fixed-gear fishing industry of the
Atlantic states at an unacceptable risk.
More specifically, NMFS has repeatedly failed to meet the
deadlines for action as mandated in 118. The failure to
implement the measures proposed in the interim final rule has
placed the fishing industry at risk of arbitrary and
insupportable court-ordered actions. Funding essential for the
effective implementation of the suite of measures agreed upon
and recommended by the TRT has been either inadequate or
entirely absent.
These measures include research and development of
alternative fishing gears, the establishment and operation of a
coast-wide network to monitor the movements of large whales and
to alert fishermen when they are present on their fishing
grounds, the training of large numbers of volunteer fishermen
in the proper methods of reporting and responding to
entanglements and to assist in disentanglements, the
establishment and equipment of a greater number of specialized
entanglement teams, the research by scientists into those
aspects of the whale behavior that lead to entanglements, and
finally the technology and techniques necessary to track
entangled whales until they can be successfully disentangled.
This lack of essential and meaningful support from NMFS is
in violation of 118 which clearly directs that funding priority
be given to those stocks of marine mammals most at risk.
Unfortunately, the stock of north Atlantic right whale is the
most endangered of all marine mammals and, by law, the
development and implementation of an effective TRP should not
be compromised by a lack of funding, especially when one notes
that appropriation to NMFS by Congress for implementation of
MMPA was over $34 million for fiscal year 1999.
Also troubling is the apparent inability of NMFS staff
assigned to the Large Whale Take Reduction Team to follow
through on requests by the team for specific information, data
sets or analyses. This inevitably leads me to question the
standing and credibility of the TRT process within the agency.
It would not be hard to come to a conclusion, as some observers
have, that NMFS is simply going through the motions to
minimally comply with Section 118 of the MMPA and to place a
thin veneer of objectivity over decisions already made within
the Office of Protected Resources.
I regret that it has become necessary to deliver this
critical and negative assessment of the Large Whale Take
Reduction Team and NMFS' failure to act in an effective manner
to both protect whales and support the fishing industry. In
closing, I repeat my strong support for the concept and the
intent of Section 118 of the Marine Mammal Protection Act and
urge the committee to take whatever steps are necessary to
ensure that NMFS also gives its full and open support. I thank
you for this opportunity and would be happy to answer any
questions.
[Prepared statement of Mr. White follows:]
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Mr. Saxton. Thank you very much. Ms. Young.
STATEMENT OF NINA YOUNG
Ms. Nina Young. Mr. Chairman and members of the
subcommittee, thank you for the opportunity to appear before
you today to present our views on the take reduction team
process under the Marine Mammal Protection Act. My name is Nina
Young. I am the Director of Marine Wildlife Conservation for
the Center for Marine Conservation. CMC has participated on all
five take reduction teams and in 1993 we also participated in
negotiations with the fishing industry to develop the proposal
that ultimately became the 1994 amendments to the Act.
The take reduction team process was a direct outgrowth of
those negotiations primarily because the fishing industry and
the environmental community firmly believed that they needed a
multi-party negotiation process to devise strategies to
eliminate the entanglement of marine mammals in commercial
fishing gear while maintaining viable fisheries. Today I will
focus my remarks on the positive points of the take reduction
teams and my concerns about the NMFS implementation of the take
reduction plans.
My detailed written testimony, which I have submitted for
the record, reviews each of the take reduction teams. Despite
the difficulties in balancing the need to reduce marine mammal
kills and minimize economic impacts to fishermen, I firmly
believe that the take reduction team process works. It has
successfully produced three consensus plans while establishing
greater trust and working relationship among the various
interest groups that have participated in the process.
Each take reduction team has its own dynamic but in every
case the facilitators were critical in moving the team from
conflicts toward consensus. While there was significant debate
about the quality of the population and by catch estimates the
teams that were most successful were those that moved quickly
through their concerns about the science and into the analysis
and development of take reduction strategies. The size of the
team, having sufficient time to negotiate, the number of
meetings, providing participants with the ability to express
their points of view, adequate scientific support are all
important factors to the team's success.
To improve the process CMC recommends that there be two
additional meetings, one to review the final plan before it is
submitted to NMFS and another during the comment period to
provide feedback to NMFS. Still the process produced creative
research recommendations and strategies to reduce marine mammal
take in fishing gear. In terms of implementation, NMFS is still
struggling with the deadlines for the implementation, how to
translate the team's recommendations into regulations, the role
of the take reduction teams, coordination between the teams and
the fishery management councils, and its own level of
commitment to the process.
NMFS has yet to realize that consensus is hard won and from
the perspective of the individuals that engage in this process
the take reduction teams are critically important to their
livelihood and to the conservation of the species. Therefore,
NMFS must view this process as a priority partnership that
includes NMFS and all the various stakeholders. The ground
rules require that all participants have the authority to
commit their organizations to the consensus.
NMFS must also meet this requirement as well. NMFS
representatives must be active participants that are able to
legally evaluate the take reduction strategies and commit NMFS
to the consensus. They must also be able to advise the team as
to whether the consensus strategies will meet the Act's
targets, are easily implemented and enforced and whether the
research recommendations are achievable. It undermines the
process when team members conclude the negotiations with the
false expectations that their recommendations will be
implemented.
CMC recommends that a regional administrator, a
representative from NOAA general counsel, and NMFS enforcement
officers be present during the negotiation when the consensus
is being formed. In further meeting its commitments, NMFS must
do the following. They must implement the take reduction plans
within the statutory timeframes, improve coordination between
the take reduction plans and the fishery management plans,
provide the necessary resources to achieve much needed observer
coverage, improve the quality of the scientific data, and carry
out the plan's research recommendation.
To accomplish this, NMFS needs to dedicate greater
resources to the plan's implementation and greater commitment
to the process. Some take reduction teams appear to be
successful. However, overall it is premature to assess the
effectiveness of these plans since most have only been
implemented for a year. Nevertheless, the participants
generally view the take reduction team as a favorable
alternative to the adversarial notice and comment rulemaking.
The downfall in the process is NMFS' implementation. If
take reduction teams are truly to be successful, NMFS must
heighten its level of commitment and restore the participants'
faith in this partnership. Thank you for your attention and I
will be happy to answer any questions.
[Prepared statement of Ms. Nina Young follows:]
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Mr. Saxton. Thank you very much. Mr. Foster.
STATEMENT OF WILLIAM FOSTER
Mr. Foster. Thank you, Mr. Chairman and members of the
committee. The title of coastal gillnet industry is really a
category rather than a group. I am here representing and
speaking solely for myself as a person who has participated in
a large whale team and continues to try to be active in the
process. My oral comments are the same as the written comments
that I will run through briefly. In fact, I will go ahead and
just jump to the recommendations because I think you have
covered it as far as how the teams have worked.
My recommendations to improve the take reduction team
process would be, No. 1, to calculate the Potential Biological
Removal for a stock using the mean population estimate rather
than the minimum population estimate. That is, use the best
available scientific information rather than the worst
available scientific information. The only reason to use a
minimum population estimate is to create a crisis to promote an
agenda or generate funding. This introduction of bias into
fishery stock assessments is labeled the Precautionary Approach
by NMFS.
No. 2, develop plans which assess the cumulative impacts of
regulations on both marine mammals and fishermen. Plans and
regulations are being layered on top of each other with no
concern for their cumulative impacts. Even though NMFS does not
attempt to comply with the Regulatory Flexibility Act with
regards to the cumulative impacts of regulations, the Act does
require that those impacts on fishermen to be considered.
Common sense requires that we do the same for marine mammals.
No. 3, NMFS should assign one person solely to each take
reduction team. That person should be given both the
responsibility and the authority to negotiate and make
decisions for the agency. One person with one secretary should
be able to handle all the work associated with one plan and one
take reduction team. There would be enough biologists freed up
by this action to do all the research that needs to be done.
NMFS has some very good people if they could get out of
meetings long enough to do some research.
One other comment I would like to be is the reference
toward strategic stocks. Some of these strategic stocks such as
bottlenose dolphins are there because of the science that is
available. Bottlenose dolphin is strategic stock because of the
die off back in 1988, I think it was, supposedly killed
approximately 50 percent of the population but that depends on
what the population was and that population estimate is very
flawed and probably would not be a strategic stock if it were
not for that assumed low population level.
The hardest thing for the fishermen to deal with is that
some of these things are locked in before we get into the take
reduction process. This Potential Biological Removal locks in
the number of animals that we are dealing with and where it is
not based on the best information it makes it very hard to try
to cooperate to achieve a goal that is realistic. The idea that
we are trying to get all marine mammal interactions to
essentially a 0 level rather than treating marine mammals as
renewable resources. For some reason, we put them up on a level
where they are not supposed to be touched and rather being part
of the overall ecosystem that we are a part of.
And those things are locked into the Act apparently and to
the extent that they are locked in, they make it very difficult
to be really effective in trying to go ahead and reduce these
interactions. Thank you.
[Prepared statement of Mr. Foster follows:]
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Mr. Saxton. Thank you very much. We will now move on to Ms.
Sharon Young.
STATEMENT OF SHARON YOUNG
Ms. Sharon Young. Thank you, Mr. Chairman, members of the
subcommittee. I am Sharon Young and I am a marine mammal
consultant for The Humane Society of the United States. On
behalf of the 7.3 members--million members of the Humane
Society, we are really a lot bigger than seven, I am grateful
for the opportunity to address you and to provide our thoughts
on Section 118 and particularly where it has been less than
effective in reducing marine mammal mortality.
I would like to raise a couple of different points. One of
them is that Section 118 does not include any mandate for
including recreational fisheries and take reduction plans
despite the fact that many of these fisheries use the same type
of gear as commercial fisheries and are known to kill marine
mammals. We believe that they should be included as part of the
take reduction process. Additionally, the mandates of Section
118 are often undermined by funding shortfalls.
The National Marine Fisheries Service has recently resorted
to taking money away from critical research and take reduction
team implementation line items in order to find base operating
expenses. This is not acceptable. The agency needs to identify
and advocate for its fiscal needs clearly so that Congress can
grant funds adequate to carry out the mandates of Section 118.
We are particularly concerned, however, with NMFS' failure to
meet statutory deadlines which is four stakeholder groups to
turn to Congress and to litigation although the amendments were
designed to obviate this need.
As previously mentioned, the deadlines under Section 118
would have brought fisheries to PBR by October 1996 but because
of delays within the agency no fisheries were actually able to
comply with this mandate. In fact, no take reduction plan had
even published by that date. Despite Congress granting an
extended date for compliance for the Gulf of Maine gillnet
fishery Harbor Porpoise were still being killed at a rate over
three times their PBR when the April 1997 deadline came and
went without any publication of take reduction plan.
NMFS has never convened teams for two of the stocks that it
itself identified as priorities. Four of them have been dogged
by litigation or threat of litigation as a result of delays and
insufficiency of response and only one has actually met the
intent of the law. On the Atlantic Coast they have been slow to
convene teams. Recommendations made by teams are tabled without
action unless there is court oversight. The Atlantic large
whale team was convened subsequent to litigation and litigation
dogs it to this day while the very survival of North Atlantic
right whales is imperiled.
The Harbor Porpoise team, considered by NMFS to be its
highest priority was convened late and despite submitting
consensus recommendations on time no plan was published for
over 2 years until litigation was filed that compelled NMFS to
release the plan. Three years after submitting a consensus plan
to the National Marine Fisheries Service the Atlantic Offshore
Team still has had no plan published. Most of its
recommendations do not exist and the driftnet fishery that was
part of the team was closed without any attempt to determine
whether a take reduction plan might have reduced its
interactions.
Four years after the MMPA mandated a time line there is
still no take reduction team for bottlenose dolphins to deplete
its stock with takes in excess of their PBR. Following threats
of litigation by the Humane Society, NMFS now promises to
convene a take reduction team this year. There is still no team
for stellar sea lions in Alaska. These delays have cost the
lives of hundreds of marine mammals and it undermines
confidence in the take reduction process. The amendments put a
system in place and promotes collaborative work by
stakeholders. The system can work.
The Pacific Offshore Team is in part an example of this. It
met, reached consensus, had its plan published promptly and its
methods have been largely successful. Where the system fails,
it is not a result of the inability of stakeholders to
comprehend the problem and to develop a solution. In most cases
teams have reached consensus on the majority of their
recommendations and when plans are implemented they are
generally effective. The take reduction teams have not failed,
rather the National Marine Fisheries Service has failed the
take reduction teams.
As previously mentioned, funding issues sometimes hamper
the agency's ability to take timely action and enforce its
mandates but funding alone is not enough to explain the failure
of NMFS to enact plans. An example of this fact is that
litigation was necessary to force publication of a take
reduction plan for Harbor Porpoise although the plan had been
complete for a year prior to the suit. This illustrates I think
a different problem, the fact that the agency has a dual
mandate. It is charged with promoting fisheries and conserving
fish stocks as well as protecting marine mammals and these
goals are often in conflict.
The conflict in mandates which appears greatest on the East
Coast often results in NMFS taking insufficient action to
protect the marine mammals. While the Humane Society urges
Congress to appropriate sufficient funds to allow NMFS to carry
out its mandates, we also urge you to more directly monitor and
oversee the agency's actions. Section 118 of the MMPA was a
product of years of negotiation, compromise and consensus but
without congressional and constituent oversight NMFS
consistently fails to carry out recommendations that so many of
us have worked so hard to achieve.
We urge you to watch over the National Marine Fisheries
Service because without your insistence that NMFS obey your
laws, we fear that the agency will continue to have its
mandates implemented by the judicial branch of the government,
which is an inefficient and dangerous standard operating
procedure. We thank you for seeking constituent input regarding
the implementation of these amendments. We have submitted more
detailed written recommendations that outline additional
problems with Section 118 and we ask you to take them into
consideration as well. Thank you.
[Prepared statement of Ms. Sharon Young follows:]
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Mr. Saxton. Thank you very much, Ms. Young. Mr.
Calambokidis. Did I do that right?
Mr. Calambokidis. That was very good.
Mr. Saxton. Thank you.
STATEMENT OF JOHN CALAMBOKIDIS
Mr. Calambokidis. Thank you for the opportunity to testify
before the subcommittee. I have submitted longer written
testimony. My testimony highlights the experience of one of the
take reduction teams, the Offshore Cetacean Take Reduction Team
in the Pacific, and I was the scientific--one of the two
scientific representatives on that committee. Ours was one of
the smaller teams that consisted of four representatives from
the Offshore Drift Gillnet Fishery, three members of
conservation groups. We had two scientists with independent
bodies. One of them myself. And we also had members of a
Pacific State Marine Fishery Commission, the California
Department of Fish and Wildlife and National Marine Fisheries
Service.
The situation we faced in the Pacific was an offshore drift
gillnet fishery targeting thresher shark and swordfish. There
were a number of cetaceans and pinnipeds, seals and sea lions
taken in this fishery and there were six different species that
were deemed critical, which means their level, the number of
animals killed in the fishery exceeded what was thought to be
able to maintain their populations at optimal levels.
So when the team convened in 1996 our first priority was to
look at how to reduce those mortalities in the first 6 months
and even though I think the Pacific team was one of the more
successful teams that time line was clearly one that would be
difficult to achieve. The fishery only operated on a seasonal
basis. To be able to meet and put those into effect that
rapidly wasn't possible but we were able to make a great deal
of headway. The team was one of the smaller of the five take
reduction teams and I think that helped in its success. We have
between 12 and 15 members on the team and very quickly in the
first 6 months where we are meeting on a monthly basis we are
able to work and establish some trust between the different
interest groups that were there.
And as a scientist, I was particularly pleased to see this
group working very closely with the scientists and with the
data and making a direct application between the science and
how that applied to the animals that were taken, why they were
being taken, and how to reduce them. We were able to come up
with recommendations. The four primary recommendations that
came out of the team focused on, first of all, trying to keep
the fishery from growing until the marine mammal problem was
solved. This was something the fishing groups on the panel
agreed with so we wanted to make sure that new permits were not
being issued for the fishery.
Secondly, we increased the depth that the net hung in the
water because we found that most of the entanglements were
occurring in the upper part of the net and we thought that
could be done to reduce mortality of marine mammals and not
affect the fishing catch. Third, we instituted an experiment on
the effectiveness of these underwater acoustic devices termed
pingers that were referred to in the last panel. We needed to
test the effectiveness of those because they had been found to
be effective on Harbor Porpoise but the six species that we
were dealing with in the Pacific were a different species and
there was no data on whether these pingers would serve as a
warning device for those species.
After that experiment we found it was very effective and we
mandated the use of pingers and we also mandated the skipper
educational workshops that helped to train fishermen in the use
of some of these pingers and other procedures would identify
and make them aware of the problem and also solicit their
recommendations in solving the problem. This plan has been
every effective. Right now mortalities of total Cetaceans are
down to almost a tenth of what they were prior to the plan. The
pingers especially have been a very effective component of the
plan.
I think the multiple interest groups and stakeholders, the
presence of environmental groups and the fishing industries
themselves played a critical role in the success of the plan,
not only in devising these strategies but then once they were
devised in implementing the same set of strategies developed
independently by an outside body would not have been
implemented as effectively had they not been come up with by
the groups themselves working together so that was a key
element.
We did have road blocks that we faced. The group did agree
that data would have been much better if there was better date
on population size, rates of take, and they wanted to see more
of that. Fishermen struggled with the resources to buy these
pingers and put them in place in the tight time schedule. But
in conclusion, I think it was a very successful process. We
continue to meet and work toward trying to achieve the zero
mortality rate goal and the team continues to meet on that but
it has been a very successful process.
[Prepared statement of Mr. Calambokidis follows:]
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Mr. Saxton. Thank you very much. You each have quite
different perspectives although I hear some common themes
running through most of your testimony. Mr. White, I don't want
to mischaracterize your testimony but you used the word
ineffective when describing I guess I would say the process
that we created in trying to create these teams, and Ms. Young
on the other hand said it works and cited the fact that there
are three take reduction plans in place.
On the other hand, Mr. Foster, it sounded to me like you
were saying that perhaps the teams go too far and that the
process therefore is harmful I guess to your industry. Ms.
Young spoke of funding shortfalls that that NMFS doesn't do its
part of the job and Mr. Calambokidis, it sounded like you were
talking about a very successful experience that your team had
so you all had some different perspectives.
I guess what I would like to ask you is a follow on to the
question that I asked the first panel and that would be with
regard to the role NMFS plays. Obviously, there are probably
different perspectives on this as well but in regard to the
process and the role that NMFS plays in it. Could you each take
just 1 minute and characterize your feelings and your beliefs
relative to how NMFS interacts or does not interact properly in
and throughout the process that you have observed. Would you
start, Mr. White?
Mr. White. Thank you. I would like to clarify one point in
that I was speaking only of the Northeast Large Whale Take
Reduction Team as a specific take reduction team. And I think
the group in itself has been very successful in what it has
tried to accomplish. I think my frustration from that point on
comes either financially or whatever with the enforcement of
the implementation of a plan because I don't think anything--
there has been very little action to supporting what came out
of the plan so we don't even know if what came out of the plan
before is even working and we are already starting to develop a
new plan. I think that is the frustration level that I have
from the fixed gear fishery in the Northeast.
Mr. Saxton. Thank you. Would you speak to NMFS' role?
Mr. White. Would I speak for NMFS?
Mr. Saxton. Would you give us your impression--one of the
key--when Congress wrote the provisions that we are discussing,
it was our intent to create a process to reduce the take of
marine mammals, especially those that are in short supply, so
to speak, in a way that would involve people who are concerned
about and involved in one way or another with species. And it
has been suggested by some that the process is not working well
because NMFS doesn't interact with and throughout the process.
My question is would you comment on that and give us your
feelings?
Mr. White. Yes, I would like to answer that with two
answers, if I could. I think NMFS' involvement in the take
reduction team needs to be expanded and I don't know how that
is possible under their current funding situation. I sense a
frustration from the agency in not being able to accommodate
the needs that we feel are necessary to get the information to
successfully come up with a management plan.
I also on the other half of it am frustrated with what
appears to be a lack of financial support to implementing the
regulations that have come out of a plan. There was some very
good compromises that came out of the last take reduction plan
and implemented "in the National Marine Fisheries Service Plan"
but the enforcement on it has been little or none. I think in
the State of Maine we have two enforcement agents for 3,500
miles of coast line. It just can't be done.
Mr. Saxton. Thank you. Nina Young.
Ms. Nina Young. I think there are two things. As you heard,
resources is one, but it is important we engage NMFS in the
process. The team often times come up with some level of
consensus only to have the plan fail to be implemented
according to the statutory time lines or changed, in some cases
dramatically, as if no discussion even occurred. And I would
much rather have instead of ten NMFS staff sitting around on
the periphery and two at the table, Dr. Rosenberg there at the
critical point when we are devising the consensus.
Usually there are six teams or six meetings during a team
and the first few are ones where people are setting out their
positions. They are developing and reviewing the science. It is
really the last two where you are coming up with that consensus
and it is at that point that I would like somebody from the
senior level of management of NMFS to be present to commit the
agency to the consensus, somebody from NOAA general counsel to
say, yes, we can turn these into regulations and somebody from
enforcement to tell us whether or not this is going to be a
strategy that is easily enforced.
I think those are three components, those are the people
that we need at the table, not a bunch of staff at lower levels
who have to constantly go back to their seniors to brief them
about this. An example that I will provide for you is the
Fishery Management Council. There the regional administrator
sits through the deliberations and plays a role. The take
reduction teams, for those of us that participate in them, are
just as important as the Fishery Management Council process so
they should have the same importance in the eyes of NMFS as
that council process and they should have that same level of
management authority.
Rarely does a regional administrator come to those
meetings, maybe to provide opening remarks but none of them
have been there when the rubber hit the road and the consensus
was being reached. Going back to the resources, we definitely
need National Marine Fisheries Service to ask for more money to
implement these teams. As you will probably recall, Mr.
Chairman, when we did this law back in 1994, we estimated that
it was going to cost somewhere around $18 million just to
implement Section 118 and all that NMFS gets in its Federal
appropriations is $10 million for the entire act.
So you can see that there is a tremendous shortfall that
doesn't allow us to really implement some of the creative
strategies that we come up with in these negotiations with the
fishing community.
Mr. Saxton. I just noted that Dr. Rosenberg was nodding his
head yes when you described the funding shortfall. Mr. Foster.
Mr. Foster. I am trying to remember your question but as
far as the role of NMFS the devil is in the details and on the
large whale team we work very hard to get as close to consensus
as we could. The biggest issue was right whales which affects
the Northeast and Southeast regions mostly. We were primarily
impacted by the humpbacks in the Mid-Atlantic. The final
regulations that the team agreed upon, when they came out as
final rule that the team was reconvened, we were given a copy
of the final rule. It was going to publication. The team was
asked to comment on it but no changes were going to be made in
it.
So, in other words, there wasn't any reason to have that
meeting but we were there to comment on it. The final rules
that were implemented in the Mid-Atlantic were not what we--
they had been changed enough where it was not what we had come
up with. Consequently, there was no real harm done to the
fishermen but there wasn't any benefit for the whales. It did
essentially nothing because of the lack of defining the gear in
the way it needed to be defined. So it got to--there has got to
be a way for NMFS to follow through and get somebody that
understands what we are talking about with gear so that it gets
implemented in the way that it was proposed by the committee.
Mr. Saxton. Thank you. Ms. Sharon Young.
Ms. Sharon Young. I won't belabor the issue of funding
which has already been covered but I want to also reiterate a
suggestion that Bill Foster made earlier, which is I think it
would be helpful to have someone in particular charged with
following the plan through from the end of the team meetings
all the way through publication of the final rule so that there
is someone you can go to that is accountable and can address
some of the questions that the team will have on an ongoing
basis.
It also is important that the team be consulted if plans
are changed. I think some of the controversy that has arisen
about the large whale plan was because once the team didn't
reach consensus NMFS developed a plan and rather than seeking
input from the people on the team about the plan it just went
out and we ended up in a very adversarial process. And in the
Mid-Atlantic the plan was changed quite substantially from the
way the team focused to a way that was much more readily
administrable by the agency but the team didn't understand that
a change was going to be made until the plan was published and
it could have--a lot of misunderstanding could have been
avoided if the team had been consulted.
And also again I do want to reiterate that I think one of
the other problems with this is that the agency has a
conflicted mandate and in trying to conserve fish and trying to
conserve marine mammals the two arms of the National Fisheries
Service don't always talk to one another and it would be
helpful also I think to have some of the people from the
fishery management side at the table as well as the marine
mammal protected resources folks,. In the offshore take
reduction team in the Atlantic, I would say probably 25 percent
of our time was consumed over squabbles of the swordfish
allocation and it really distracted from our ability to focus
on marine mammals.
And in the case of the gillnet fishery in the Mid-Atlantic
they are already being pretty hard hit by fishery management
restrictions. I think it is very difficult for the agency to
then take a take reduction plan that is proposing additional
restrictions and impose that on the fishermen as well. I think
sometimes it is easier to have someone litigate than to take a
really hard-nosed approach to that kind of thing. And as
somebody who has had to speak before the Fishery Management
Council, they don't always talk about marine mammals.
Fishery Management Council people on the team will say that
we can't consider the effect of our plan on Harbor Porpoise. We
can't. And that I think is something the agency might be able
to help facilitate because if you have those things being
melted better together, I don't think we would be having the
breakdown in implementation and the squabbles over the effect
that it is having on the fisheries.
Mr. Saxton. Thank you very much. Mr. Calambokidis.
Mr. Calambokidis. There were a couple of different aspects
to NMFS' role in the Pacific Take Reduction Team. On the one
hand we had some of the scientists at the table as advisors and
I think by and large their role was very positive. They were
very responsive as best they could to the requests of the take
reduction team. They were operating within certain constraints.
The abundance estimates and these PBR calculations of
biological removal came through a separate process.
These stock assessment reports were reviewed by a
scientific review group but as best as they could, they could
provide information on what generated those and we could
provide input back into these SRG teams on where we thought
estimates needed to be changed or there were problems. Now we
had fairly good consistency in terms of the NMFS people at the
table negotiating. Thought I see elements of some of the
concerns that have been raised certainly occurred in the
Pacific team.
For example, there was uncertainty when the team met
initially on would NMFS follow through on all these
recommendations and what would NMFS be viewing and there would
be questions put to the NMFS representatives that they couldn't
always answer exactly what would happen after we developed our
consensus, would it be implemented. In all fairness, I have to
say there was also a positive aspect of that unknown, a
statement that was not said by NMFS but that those of us on the
team operated under and was a major incentive to reach
consensus was we better find a way to come up with a good plan
that works, otherwise, NMFS will.
And on the one hand it provided pressure that we knew if we
didn't do our job and reach a plan that worked there was this
other body that would step in and take over so that had both
a--kind of a concern but it also played a positive role in
another way.
Mr. Saxton. Well, thank you all very much. The gentleman
from Maryland from the eastern shore of the Chesapeake. The
gentleman from the eastern shore of New Jersey.
Mr. Gilchrest. It sounds like--I am a little confused now
about the process. I almost want to ask Dr. Rosenberg another
question. Is there--and could I ask Dr.--I guess I can. Thank
you. Dr. Rosenberg, you wouldn't mind--from what I will say
John C. has said and what the other members of the panel have
said it seems at least to some extent to some people for the
most part that the teams have worked fairly effectively, and
one person during the testimony said that, at least my
interpretation of it, was that the teams need to have NMFS
participation which I assumed each team has one or two people
from NMFS on that team.
Is there a very specific protocol for NMFS role on each
team for using scientific data, how that data is analyzed and
then a consensus for a plan and then the implementation of that
plan? Is there a clear strategy developed for each one of those
teams as far as NMFS is concerned?
Mr. Saxton. Dr. Rosenberg, before you answer, would the
gentleman suspend, take the chair for a few minutes. Thank you.
Mr. Rosenberg. Congressman, the answer is yes. There is a
clear set of instructions and those instructions are to the
extent that we possibly can provide information to the team in
response to their requests made them aware of what information
we have available and what information we don't have available.
Everyone in every fishery management resource management
discussion is always frustrated by a lack of information
because everyone would like to know the perfect answer before
they have to make a decision and of course we always have very
imperfect information.
So the reason that you have a large number of staff from
NMFS in the room but as you pointed out only one or two on the
panel is twofold, one to provide as much information to the
team as possible, and, second, for those people who are working
on that problem specifically to learn what the team wants to
know about and also learn from the information that the team
has to provide.
Often fishermen or conservation groups have either
anecdotal information or hard information that is immediately
useful to the scientists as they do their analyses but
compiling that information is very difficult so our primary
role is to provide them as much information as we can from both
the policy perspective as well as the scientific perspective
and to make sure that they realize what the limitations of that
information are and what the strengths are and also to make
sure that people do not inappropriately combine sources of
information.
If you have a strong peer review stock assessment you
should view that as a very strong piece of information. If you
have comments from an individual scientist that is not peer
reviewed that is of a very different quality than a peer
reviewed well thought through team-produced report on a stock
assessment. Second, the team members are there to try to do
everything they can to get the team to come to consensus. They
are not there as decisionmakers and there is a simple reason
for that and a number of the analysts mentioned this.
And that is because when the team makes its recommendation
on a plan if they make a recommendation, and several of the
teams have not been able to come to consensus, including the
large whale team that was referred to. When they come to
agreement on a plan or make their recommendations they do not
have in front of them the documents required for determinations
of the national environmental policy act, the Marine Mammal
Protection Act, the Endangered Species Act, the Paperwork
Reduction Act, the Regulatory Flexibility Act, and so on,
because none of those things can be produced until we have a
plan to do the analysis, so we can't pre-judge, yes, this will
be OK until we do the--we actually put together the
documentation and analyze it compared to the respective laws.
The team does not do that. Our staff does it afterwards so
our people need to remind people that those things need to
occur and that certain measures will not be--you know, may or
may not work depending on how that analysis turns out. We try
to give them as much information as we can and some things are
clear the same as in the Fishery Management Council that they
won't work or they look like they probably will work.
But the Secretary can't make a determination unless he has
the decision documents in front of us, otherwise, all of these
people will sue us and say you made an inappropriate decision.
If you sit at the table, you know, that is OK, so we try to
make sure that they realize what those limitations are but that
is an awkward position for a team member to be in.
Mr. Gilchrest. Based on your explanation that you just
gave, I think it was Nina Young that said earlier that during
the process those in NMFS that can make a decision are too far
from the team at the time they need that decisionmaking made,
did I adequately--and can you see how that might be a problem,
Dr. Rosenberg?
Mr. Rosenberg. I can see how that might be a problem. On
the other hand, technically, legally I cannot give a definitive
answer that, yes, this plan is acceptable or, yes, it is
implemented until it has been analyzed under applicable law and
that is not possible at a team meeting so I used to be----
Mr. Gilchrest. Can the team again reassemble after the
analysis by the higher ups is made?
Mr. Rosenberg. They can and they usually do. In fact, they
are continuing to meet now but I think what people are asking
for is someone like me or when I was a regional administrator,
regional administrator to be at the table to say yeah, that
looks good.
Mr. Gilchrest. How difficult is it to have a regional
administrator at the table periodically?
Mr. Rosenberg. Well, they work about 90 hours a week and
having them work 100 hours a week would be OK.
Mr. Gilchrest. I am not asking----
Mr. Rosenberg. That is impossible, sir. I am not being
flippant.
Mr. Gilchrest. I don't want people to work 100 hours a
week. We as members only work about 10 hours a week. We have 4
hours worth of lunch a day and we have Mercedes Benz with
people driving--no, I am just kidding. We are all tired. I am
just asking is it a sufficient enough priority to manage the
time of the regional managers for them, and I don't know, I am
just based on what I am hearing today, is it a sufficient
priority for these teams to implement these plans so that a
regional manager can have more involvement in the process.
And I wanted to ask Mr. C. on the end, based on this
discussion can you give us--it sounds like your team was pretty
successful. Did you perceive any problem with not having enough
input from the regional manager in the process?
Mr. Calambokidis. Well, I think we had quite a bit of
consistency in NMFS role and----
Mr. Gilchrest. Dr. Rosenberg, you can pull up a chair, if
you want, sir.
Mr. Calambokidis. And I think perhaps because the plan was
so clearly successful we didn't maybe face as much scrutiny or
challenge as the plan was reviewed so we may have gotten off a
little easier than some of the take reduction teams that were
facing more difficult challenges and had a harder time coming
up with a plan that was working. In our case the NMFS role
worked OK. We had a regional administrator present at certain
meetings but we had a great deal of consistency in who was
there both from regional and the national office and there was
no overruling or challenging of the role they played by higher
ups so it worked smoothly.
Mr. Gilchrest. So you think yours worked smoothly because
you more easily arrived at a consensus from all the
participating parties?
Mr. Calambokidis. I think that is partly it and I also
think that the consistency of the individuals that were there
worked well. We did not have NMFS really challenge or change
our document in any substantial way.
Mr. Rosenberg. Mr. Chairman, if I may, I think the--I did
not mean to be flippant about whether it is possible to have a
regional administrator there and I do believe they work about
half the amount of time that Congressmen do but the----
Mr. Gilchrest. That was a good comment.
Mr. Rosenberg. I would point out that the assistant
regional administrator for protected resources as far as I am
aware has been attending every one of the take reduction team
meetings in the Northeast and I suspect almost all the teams
have been in the Northeast and that person is a senior
official. I don't think that there has actually been an
overruling necessarily at a higher level in the process in any
circumstance but it is possible to have regional administrators
at the teams.
That doesn't mean that there aren't disagreements between
what one staffer might think and what the agency finally
decides to do but an overruling of the information we have
given to a team I don't believe has occurred. And it is
possible----
Mr. Gilchrest. When you say overruling you don't think
there has been an overruling of any team when the team arrived
at a consensus with the----
Mr. Rosenberg. I am sorry. An inconsistency between the
position of the people who are at the meeting versus the
position that the agency took I don't believe has occurred of
the three teams that I have had direct involvement with. Other
people may have a different view of that but I have been
directly involved as a regional administrator in three of the
teams.
Mr. Gilchrest. I see. Ms. Young.
Ms. Nina Young. Thank you. There are some things there in
what Dr. Rosenberg said where I would like to point out some
differences based on my experience. I think that scientists are
critical and one of the things I would like to do is commend
the National Marine Fisheries Service scientists. There were
scientists that were involved in the process that had they not
been involved we probably would not have reached consensus. And
when they were involved in the process, we were able to do
models and analyses that allowed us to have a fairly good level
of confidence that we were going to achieve the target of the
PBR to reduce the incidental take.
And it is that confidence, I think is critical--I
understand Dr. Rosenberg's point that you can't without having
all the analysis and all the environmental assessments and
things that the agency must do afterward, that you probably
will not be able to say with absolute certainty that yes, this
is a plan that is going to go forward. But being a scientist,
as he is, what I think we are looking for is, plus or minus 95
percent confidence in what is going to go forward as a
recommendation from the team is what is likely to be
implemented.
We have a very unfortunate situation in the Atlantic
Offshore Cetacean Take Reduction Team where two fisheries came
to the table and negotiated in good faith. There were a total
of three. By the end of that negotiation one was closed and
despite the recommendations that we had developed which
National Marine Fisheries Service was there at the table and
participated in, those recommendations were essentially totally
thrown out the window. That fishery was closed. And we have one
fishery and no take reduction plan essentially for that
fishery. What has been implemented----
Mr. Gilchrest. Which team was that?
Ms. Nina Young. That was the Atlantic Offshore Cetacean
Take Reduction Team. And now the only fishery that remains is
the long line fishery. The Pairtrawl fishery was closed and the
drift net fishery was closed. If NMFS' intent, from the fishery
side, was to close these fisheries from the very beginning they
should have just done it, but instead these people came to the
table in good faith and negotiated only to find their fisheries
closed later on.
Mr. Gilchrest. So there was a----
Ms. Nina Young. That is what we are trying to avoid.
Mr. Gilchrest. I see. I guess we could spend 2 days here
discussing these teams analysis. Could I ask a question with--I
would like to get back to that one but I guess this would take
us--the difference of opinions on the data created a
determination by NMFS different from the teams' consensus. Dr.
Rosenberg.
Mr. Rosenberg. If I may, because I think that this is a
really important illustration on the Atlantic Offshore Cetacean
Team. Your description of what happened is quite right that we
did end up closing the paratrol fishery and the drift gillnet
fishery. The recommendation from the team in our analysis
essentially would have used the entire budget we had available
for observers as well as for implementation for that one
fishery alone so if we wanted to do nothing for Harbor Porpoise
and for large whale take reduction team in terms of observers,
in terms of other effort and devoted all to implementing that
plan, we could have gone that way.
But we viewed that that fishery was causing so many
problems and in 1998 in one season had 300--I think it was over
300 takes of marine mammals that the fisheries should not be
operating because of its high take of marine mammals and
because to implement the take reduction plan was prohibitively
expensive so we determined that was not in the best interest of
good government to allow it to continue and spend all our money
in that direction. The paratrol fishery was closed for other
reasons as well rather early on and the team knew about that.
There are measures in place for the other fishery but they
are fishery management measures under the highly migratory
species plan and this also came up in several discussions. The
same is true in the Harbor Porpoise plan. While I think it was
pointed out that we did not implement the take reduction plan
and it was said until after we were sued for it almost pieces
of that take reduction plan were implemented but they were
implemented as the Magnuson-Steven Act provisions by the
councils and so what we tried to do was work the council
process and the take reduction process together so that the
closures that were put in place were put in place coherently
between the two bodies and therefore we didn't implement
directly the Harbor Porpoise Take Reduction Plan. We
implemented it through the council process we believe to the
same effect to modifications thereafter.
Mr. Gilchrest. Let me----
Mr. Rosenberg. So in many cases--I am sorry, Congressman,
in many cases the agency has had to make a choice about what is
an efficient way to try to achieve the goal that the teams have
given us rather--even if the team has done a good job of
developing a plan to try to solve a problem it may not be
feasible for the agency to implement it in that form and we try
to find another way to do it.
Mr. Gilchrest. So that is the Mid-Atlantic team, take
reduction team?
Mr. Rosenberg. The Gulf of Maine Harbor Porpoise.
Mr. Gilchrest. Gulf of Maine.
Mr. Rosenberg. And then the other one was the Atlantic
Offshore Cetacean Team where we closed two of the fisheries and
implemented other provisions under the highly migratory species
plan.
Mr. Gilchrest. So in other words the team came up within
your judgment a pretty good plan but to implement that plan
would have drawn all your resources from other activities of
NMFS?
Mr. Rosenberg. Other take reduction activities for a
fishery that included less than 20 vessels.
Mr. Gilchrest. So as a result that NMFS didn't have the
resources, if NMFS had the resources then the take reduction
team's plan would have been followed through with.
Mr. Rosenberg. It could have been followed through with if
there were not other issues related to that fishery. It is not
clear to me that there weren't other issues particularly
related to turtles the team did not consider and we may have
closed that fishery anyway because of other problems with the
drift gillnet fishery. That is the fishery that we are talking
about. It was a very small fishery and a very high cost and we
did not judge it as cost effective to keep it open given the
problems with both turtles and marine mammals.
Mr. Gilchrest. So the fishery was closed which means there
is no fishing there.
Mr. Rosenberg. All of those vessels have gone to long
lining.
Mr. Gilchrest. Oh, I see.
Mr. Rosenberg. Which with one exception which incidentally
of course has an issue with turtle bycatch as well but these
are very complicated things with lots of interactions. The
fishermen continued fishing I think with one exception but they
no longer can use drift gillnet gear as we are not allowing
that gear to be used.
Mr. Gilchrest. So you said part of the plan was merged into
the management council to implement. How does that work?
Mr. Rosenberg. I am sorry. This is not my panel. I
apologize.
Mr. Gilchrest. So the management council took some of the
recommendations of the take reduction team and merged it into
its plan?
Mr. Rosenberg. Yes, although it was not quite so clean as
that. That effectively is what happened with Harbor Porpoise or
highly migratory species. There isn't a management council but
there are advisory panels and some of the--well, there was a
discussion of but I don't think they implemented some of the
large whale take reduction measures through council action. We
raised with the council and the council considered in
committee, you may have even been on the committee, a number of
the measures to protect Harbor Porpoise including area
closures.
What we did not want to have was entirely different and
disjunct area closures that were meeting two different purposes
and would be totally confusing both to our enforcement agents
as well as to fishermen so we tried to pull them together
through the council process and I believe we did that
successfully.
Mr. Gilchrest. I will let Nina respond to that and then I
will yield to Mr. Faleomavaega.
Mr. Nina Young. Thank you, Mr. Congressman. I think
harkening back to what Dr. Calambokidis has said, what is
important there and one of the reasons why that team was
successful is it did have support at high levels by the NMFS
personnel. They implemented that plan solely through the Marine
Mammal Protection Act which was really the intent of Congress.
It was also intended that there be better coordination, not
kind of a piecemeal implementation of the plans, some
provisions under the Marine Mammal Protection Act, some under
the council.
On the one hand, we don't want to create an additional
burden on the fishermen by having additional closures and such.
As much as possible, the take reduction teams have tried to
merge fishery management closures with marine mammal closures
and restrictions. There needs to be better coordination of the
fishery management council actions with the take reduction team
actions. But I still think that we need to adhere to the intent
of Congress and that was to implement these plans under the
Marine Mammal Protection Act so that it can be enforced under
that Act with all the sanctions and provisions thereof.
I think in terms of the discussion with the Atlantic
Offshore Cetacean Team that fishery already was being observed.
The gillnet fishery had 100 percent observer coverage. It would
have been beneficial to know again, at the table, when we were
coming up with what were arguably rather complex strategies to
reduce take in that fishery. It would have been good to know
right there at the table that this was just going to be too
expensive, that really what we were looking at was the
potential, the most effective way was to close that fishery
down.
That was the feedback that we are lacking, even if it is a
back of the envelop calculation of what it is going to mean to
the agency to implement this, that is important information
that we never received, that we need to take into consideration
as a team. Unless we start to have that dialog--unless that
dialog starts in the team and we get that kind of feedback in
terms of management and implementation, we are always going to
be in this situation where there is going to be concern, and
all the good faith will go out the window as far as the
implementation of the team.
We need much more active participation at a lot of
different levels of NMFS. Scientists really did help us a lot
but in other cases I really feel for the fisheries that engaged
in that negotiation only to come out the other end and have the
fishery be closed. That wasn't the intent of the Act. Thank
you.
Mr. Gilchrest. Thank you. Mr. Faleomavaega.
Mr. Faleomavaega. Thank you, Mr. Chairman. I heard your
statement earlier say that you are a little confused by all
this. Well, I am a little more confused but I shall attempt to
raise some questions if Dr. Rosenberg will not mind if he can
take the side chair again. I have a couple of questions for the
National Marine Fisheries. I am sorry about that. With all the
data and constructive criticism that our panelists have
received this morning concerning the NMFS, would I be correct,
Dr. Rosenberg, to say that one of the reasons why you are
unable to do some of the things that have been alluded to
earlier by the members of the panel is because of budget
restrictions? Is that a fact?
Mr. Rosenberg. Yes, sir, budget and staff restrictions,
yes, sir.
Mr. Faleomavaega. All right. I noticed also that the five
teams that were established under the National Marine Mammal
Sanctuary Act, I noticed that out of the five established only
one is for the Pacific. Now we have a very balanced approach to
this committee. My good friend, the Chairman, and the gentleman
who sits right next to me are very proactive as far as the
Atlantic Ocean is concerned. I happen to come from the Pacific.
And is there some strong implications here that we don't have
as many problems in the Pacific as far as protecting the marine
mammals? Is that the reason why we don't have as many teams as
our friends of the Atlantic?
Mr. Rosenberg. Congressman, I think that the reason that it
has happened that way is twofold. One is that amongst the
urgently needed attention where stocks on the Atlantic were
immediately interacting with fisheries and in the Pacific a
number of the stocks that were immediately interacting with
fisheries were being dealt with under other mechanisms. For
example, in Alaska there was stellar sea lion work going on
through the council as well as through a recovery team although
someone suggested that we should--and I believe it was
suggested here we should form a take reduction team in that
process as well, which is already quite complicated.
For monk seals in the Hawaiian Islands there is an
endangered species issue but it is not a direct fishery
interaction issue. And of course there are some other
interactive issues that have been dealt with under other
legislation such as tuna-dolphin, so there are a number of
things going on in the Pacific but not so much directly through
the take reduction team process. It is not because we are less
interested of course in Pacific fisheries but we try to choose
the marine mammal fishery interactions that seem ready to move
into a take reduction process and didn't already have some
other kind of forum where the issues were being discussed.
Mr. Faleomavaega. We are having a royal battle going on now
between the Department of Commerce and the Department of
Interior as to which agency should have the lead on protecting
our coral reefs, and I notice also the involvement of the
Department of Agriculture. When you capture a marine mammal it
comes under the Agriculture Department. This is a very distinct
scenario here. We have three Federal agencies involved and I
would like to ask Dr. Rosenberg is this going on OK between you
and National Fisheries in trying to determine whether an animal
goes into a certain thing and all of a sudden you just stop
right there and AFIS has to come in and take over. Is this a
pretty good way of running the provisions of this Act?
Mr. Rosenberg. I understand your question, Congressman. I
think that you are referring to animals that are held in
captivity and then dealt with other AFIS rules such as the monk
seals that were then transferred to Sea World in Texas. And
they have the expertise on display animals. That has been not
so much of a problem. The larger issue is how do we protect the
monk seals in place. There is, as you noted, both Department of
Interior interest as well as Department of Commerce interests
and I am sure you can recognize that I have absolutely no
opinion on that matter.
However, I would point out that National Marine Fisheries
Service, the Department of Commerce has the overall expertise
in marine resource science and management and I believe coral
reef. Corals are all marine but with regard to monk seals
similarly we had been working intensively in the northwest
Hawaiian Islands to try to develop measures for protection
among seals and will continue to do so. The interaction in the
reef ecosystem is a complex one and certainly needs a lot more
work. I don't think agriculture is involved in that part, only
in the display part.
Mr. Faleomavaega. If I could ask the members of the panel
and also Dr. Rosenberg, do you see any provision in the current
law that is defective to the extent that we really need to make
amendments? Do we need to make any major surgery on any of the
provisions to the current law so that it becomes more
palatable? We can work with it in a more practical way.
Are we putting too much on the table as far as the Congress
is concerned --and yet we have so many shortcomings on the
ability of the Administration and the commissions or whatever
groups there are to enforce the provisions of this Act. Are
there any provisions here that you would recommend, Dr.
Rosenberg, that we ought to change?
Mr. Rosenberg. Congressman, I don't think that there are
specific provisions we ought to change but I do believe that
we--staff is probably going to throw something at me if I miss
something but our biggest concern is whether we can effectively
carry through the process with the team, take reduction teams,
have sufficient resources, staff them sufficiently and provide
them the information in a sufficient manner for them to do the
work.
I don't think that is a matter of changing the law although
the deadlines of course are as everyone has noted are
problematic for us and they are statutory.
Mr. Faleomavaega. Members of the panel.
Mr. White. Just as a followup to what Dr. Rosenberg said, I
am wholly supportive of the process as it is conceived and I
think it is just something we need to build on. I am not an
expert at all on the laws and I can't see that as I understand
them now things need to be changed other than we need to do
what its original intent was and just build on that. I think
the process is there and the process is an excellent one. I am
wholly supportive of it but it is like what I understand an
unfunded mandate is. It just needs to be carried further and
improved on.
Mr. Faleomavaega. Ms. Young.
Ms. Nina Young. Thank you. We totally reviewed the Act and
have given this a lot of thought and we would be happy to
provide you with our recommendations for amendments to the Act.
I could probably encapsulate that by saying for the most part
there are technical changes, things to make the Act run more
smoothly, oversights, that once we got involved in the
implementation we hadn't really thought about. I think that
Section 117 and 118 are functioning well.
I understand that there is a problem with the deadlines. We
would probably recommend changes there along the lines of
including again higher level participation by NMFS personnel in
the take reduction team process but overall I think those
provisions are functioning as we had hoped even though they
aren't meeting their deadlines and that potentially with more
time we will see them reach their targets, the zero mortality
rate goal, the Potential Biological Removal.
My view is that the time that we spent has been more or
less growing pains in trying to implement this rather complex
section of the law. Overall, in other areas, I think we need
additional research into deterrence for pinnipeds to keep them
away from fishermen's gear and catch and we need a much more
dedicated effort in that regard, as Dr. Reynolds said.
We also need to start to think proactively about the health
of marine mammal stocks. In some cases, stocks have recovered.
In other cases, we have concerns about Hawaiian monk seals and
even healthy stocks like California sea lions. We are seeing a
much larger occurrence of cancers, various tumors, diseases,
hepatitis, herpes virus in these animals than ever before and I
think we would really welcome the Congress to look at Title IV,
which is the Marine Mammal Health and Stranding Response Act,
and look to ways to bolster that effort to better assess the
health of marine mammal stocks.
Mr. Faleomavaega. I am not a scientist, Ms. Young, but I
would think that Dr. Rosenberg is probably aware of the fact
that these diseases in these animals were not on their own. It
probably had a lot to do with human pollution.
Ms. Nina Young. That is correct.
Mr. Faleomavaega. And our lack of providing a clean
environment for them to live in. Please. I am sorry.
Ms. Nina Young. That is it. Thank you very much.
Mr. Foster. I have to admit that I was not involved in
drafting this Act and I am not familiar with it. As fishermen,
we should have been more active when this came along. I have
serious concerns about the ability to reach a zero take on the
animals and whether or not that is--it is not just feasible or
whether it makes sense to try that and still try to produce
food from the ocean. It winds up that everything we do every
year is a compromise.
Some stocks such as the right whale may go extinct the way
it is going now no matter what we do even if we stopped all
fishing. It looks like the way they are headed right now they
may be gone. Other stocks are going to do quite well no matter
how much fishing we do and to have it across the board that we
are trying to get to zero take the Act may prescribe something
that doesn't make a whole lot of sense to me as a person who
produces seafood.
Mr. Faleomavaega. Well, as I recall, the problem that we
were having with the dolphins because our method fishing was
not only purse seining, but in other methods of fishing that we
were killing about a half a million dolphins a year. An
interesting thing was that it wasn't because the Congress in
its wisdom that decided to come out with a ban on doing the
method of fishing that we had, it was because of the outcry of
the American people. And it did such a tremendous effect on the
leaders on the Hill that that is when we came about in passing
a law to ban this method of fishing that killed half a million
dolphins a year----because the purse seining method was
utilized.
But now we have changed that again and my good friend here
from New Jersey and I have a--I'm more of a purist when it
comes to this, because now we are killing only about 3,000
dolphins a year as a result of this mandate. And of course I am
a little familiar because Starkist Tuna had a little problem
here in the way that they were advertising, how they were
capturing the tuna. My district happens to have the largest
tuna canning facility in the world. I am a little familiar with
this issue.
But as you had mentioned, sir, about the fishing industry
if there is anything I want to do it is protect the fishing
industry as well. But at the same time my real sense of serious
complaint is that while we are putting our commercial fishing
industry on this high standard that you are not to capture
these mammals, not do this, what about the other countries in
the world and their fishing methods. I will tell you right now
they are not in any way near the standards that we are putting
on our fishing industry, and I think that is a crying shame but
that is what we are living with as far as reality is concerned,
and I don't agree with that.
But I do appreciate your concerns, sir, about the fishing
industry and I will get to that in the next question. I didn't
mean to disrupt Ms. Young. She might have a strong feeling
about what I am saying. I am not an expert on this Act myself
but I just wanted to know if there are obvious problems. I
would like to suggest, and I am sure the Chairman would agree,
if you have any specific suggestions on proposed changes or
amendments to the current law that we ought to look at.
We are open, and one thing I do enjoy is working with my
good friend here, the Chairman we are very sensitive about the
needs of the community. Ms. Young.
Ms. Sharon Young. Thank you. I couldn't agree with some of
your comments more. As a matter of fact, I think the Act does
not need major surgery and I think we have a lot to be proud of
with it. I think it serves as an example to many other
countries. Australia and other countries have adopted similar
protective measures because of the example we have set and I
think there is a lot to be proud of.
And I think some of our great concerns are because of that
disparity and because of our trade agreements with other
countries. We are often finding ourselves in very difficult
positions because of the trade agreements we have made that may
undermine our own protective agreements and a study that came
out about a year ago by Steven Keller of Yale University
indicated that attitudes of the American people toward marine
mammals haven't changed at all really. They are just as
strongly supportive as ever.
I am perhaps a little bit complacent in thinking we have
saved all the whales but I think their feelings are so deep
that they are easily aroused and I think that the Act's
existence has made a lot of people feel a lot better about how
we are treating those animals I think most of us care so much
about. In my testimony I mentioned some minor possibilities
including the inclusion of recreational fisheries which may
have similar impacts to commercial fisheries where the
commercial fisheries are called to count and the recreational
fisheries right next door with the same net doesn't have to do
anything any different necessarily.
And there may need to be some clarifying regarding language
dealing with enforcement because there was apparently some
concern by enforcement people about what their authority is to
enforce the provisions. But most specifically I think--and also
the Marine Mammal Commission suggestion about perhaps
stakeholder process that might be able to include other
interactors such as boats and so forth is just a clarifying
thing but it is not major surgery.
And most specifically the funding issues do have to be
addressed. I think the budgets have to be dramatically
increased so where the MMPA deals with budget line items the
biggest change would be making those numbers go a lot higher if
it is possible.
Mr. Faleomavaega. Please.
Mr. Calambokidis. I don't have specific language and I
couldn't comment on the language. I can make some of the points
that I see could be improved in the process and I don't know
how they exactly translate into changes to the Act. Certainly
some of the time lines were difficult for the groups to deal
with. One aspect that got briefly alluded to, the zero
mortality rate goal, is something the Pacific team is now
dealing with and having clearer definitions of what that means
so that that is an essential element of how the team can work
together to know if it has come up with an adequate plan right
now.
It is somewhat vague and you have some latitude to take in
other economic factors and the fishery and what is practical
but it is important that things be as clearly defined as
possible for the team to work toward consensus. And then the
other thing that has been alluded to several times is I think
aspects of funding and support for things like the assessments.
There was a mention earlier of the use of the minimum
population estimates in calculating these potential biological
removals.
And what that does, and I think it is a healthy thing, is
it puts pressure on accurate assessments. The more accurate and
less uncertainty in your assessment, the closer that minimum
estimate is to the best estimate and so it does put an
important force and need for accurate assessments. There were
other aspects on our team, things like pinger development.
There is little support for testing better ways.
The pingers were developed and we found co-incidentally
they worked fairly well with other species but few experiments
done what might be a more optimal frequency species by species
that would work more effectively than just right now we are
using the same pinger used for Harbor Porpoise out in the
Pacific to try to alert beat whales and there may be other
frequencies that would work better.
And then there was also mention enforcement is a key issue.
Interestingly enough, within the Pacific Take Reduction Team
the strongest voices for better enforcement were from the
fishermen themselves because what they didn't want to see is
those of them that followed the provisions of the take
reduction team played by the rules to reduce mortality to be
undercut by the fact other people could be getting away without
following the provision.
So that was something, enforcement across the board they
wanted to see and there were very great difficulties in seeing
how the resources could be brought to bear to provide that for
something like an offshore fishery in the Pacific.
Mr. Faleomavaega. Thank you very much. I really appreciate
your comments. I just started serving as a member of this
subcommittee last year. Why our country has to import $7
billion worth of fish which goes to the pockets of foreign
countries, and why our own country cannot produce domestically
enough fish for our own consumers is beyond me.
With all the technology and the capabilities that come with
a $1.7 trillion budget----and we are having to buy fish from
other countries. It is something that I hope the Chairman will
want to pursue. One of the trends that is happening now in my
observation, it is quite obvious that the Atlantic is over
fished and now they are coming over to the Pacific. The nation
of Kiribati [ph] has just accepted about 14 purse seiners from
the Spanish fishing purse sein industry.
They are going to be fishing for tuna at Kiribati and there
are several other island groups that are going to be doing this
because they are hard up in their own local economies. But what
is happening now is that they are coming over to the Pacific to
do a lot of fishing. And I think this issue definitely is going
to be a global one, not just our own interest, but it is going
to create demands on the entire planet if we don't take up
conservation measures as we are now trying to do. Soon we could
face the same problems that we are now faced with in the
Atlantic region. Mr. Chairman, thank you and thank you again,
Dr. Rosenberg, and members of the panel.
Mr. Saxton. Thank you, Mr. Faleomavaega. There are a series
of questions that other members have for the panel but we are
not going to ask you to sit here for another 2 hours through
lunch because Mr. Faleomavaega forgot to bring pizza for
everybody so----
Mr. Faleomavaega. Actually, Mr. Chairman, I was going to
bring some raw fish but I didn't know if they----
Mr. Saxton. I do want to thank everyone on the panel for
their insight and for their expertise they have given us today.
The hearing record will be held open for 30 days for responses
from the witnesses and the members, and we will try to reach
into this Act and collaborate with all of you today to make
sure that our human response to this human-induced crisis is
fixed for succeeding generations.
I do want to thank all of you for your patience, Mr.
Faleomavaega for his patience with my lengthy questions and
then my patience with his lengthy questions and for all your
lengthy responses. I want to thank you all very much. We do
have other questions that we will probably get to you and
continue to work on this issue. And I thank all of you for your
dedication. The hearing is adjourned.
[Whereupon, at 12:12 p.m., the subcommittee was adjourned.]
[Prepared statement of Mr. Faleomavaega follows:]
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HEARING ON: SECTION 119 OF THE MARINE MAMMAL PROTECTION ACT
---------- Th
ursday, April 6, 2000
House of Representatives,
Subcommittee on Fisheries Conservation,
Wildlife and Oceans
Committee on Resources,
Washington, DC.
The Subcommittee met pursuant to other business at 2 p.m.
in Room 1334, Longworth House Office Building, Hon. Don Young
[Chairman of the Committee] presiding.
STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF ALASKA; CHAIRMAN, COMMITTEE ON RESOURCES
Mr. Young. The meeting will come to order. Today's hearing
will focus on Section 119 of the Marine Mammal Protection Act.
Section 119 authorizes the Secretaries of Commerce and Interior
to enter into cooperative Agreements with Alaska Native
Organizations to conserve marine mammals and provide for the
co-management of subsistence use of marine mammals by Alaska
Native communities.
The Agreements entered into by the Agencies and the Alaska
Native Organizations can include grants to support the
collection of population data, monitoring of harvests, and
research activities. It is important that the users of these
resources be active participants in the research and
populations surveys because they have local and historical
knowledge that can be useful to the collection of this
information.
The Secretary of the Interior has co-management Agreements
with the Alaskan Sea Otter and Sea Lion Commission, the Alaskan
Polar Bear Commission, and the Eskimo Walrus Commission. The
Secretary of Commerce has a co-management Agreement with the
Alaska Native Harbor Seal Commission and is currently in
negotiations with the Alaska Beluga Whale Committee, the Cook
Inlet Marine Mammal Council, and the Tribal Government of St.
Paul.
I would like to have a dialogue today on the processes used
to develop these Agreements, the length of time it has taken to
implement them, and the relationships between the Alaska Native
Marine Mammal Commissions and Agencies.
I am concerned that the annual renewal of the research
portion of the Agreements and would like to know why the
Agreements were developed this way and if this annual renewal
hinders the long-term goals of the Commissions.
I want to thank the witnesses for appearing before the
Subcommittee, especially those who have traveled so far down to
testify today. Especially, as I begin, I would like to thank
those, my constituents, the distinguished Alaskans who traveled
so far to give their valuable insights on the Marine Mammal
Protection Act.
[The prepared statement of Mr. Young follows:]
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Mr. Young. We do not have a ranking minority member here,
but that is their problem right now. We will go ahead with the
hearing. And the first witness I would like to call up, I
understand that Penny Dalton is caught in traffic.
Ms. Dalton. She is here.
Mr. Young. Oh. She is here. All right. Good. I mean, you
did that on show. I am surprised there wasn't a band playing
and a little applause, Penny. But thanks for making it and I am
sorry about the traffic. I was just about to announce you were
caught in traffic.
So we will start with Panel I, and Ms. Dalton will be the
Assistant Administrator for Fisheries, National Marine
Fisheries Service. And joining her would be David Allen,
Regional Director of Fish and Wildlife Services. And the two of
you--David, would you join them, please? And, Penny, if you
want to, I will let you catch your breath. I will let David go
first or vice versa. Is that all right?
Ms. Dalton. Yeah.
Mr. Young. David, would you mind going ahead and giving
your testimony first and just let her get her breath and have a
glass of water?
Mr. Allen. That is fine, Mr. Chairman.
STATEMENT OF MR. DAVID B. ALLEN, REGIONAL DIRECTOR, U.S. FISH
AND WILDLIFE SERVICE, ALASKA
Mr. Allen. Mr. Chairman, I appreciate the opportunity today
to testify. I am David Allen, Regional Director for the Fish
and Wildlife Service in Alaska. My testimony is on the
Service's implementation of the Marine Mammal Protection Act
and in particular, on Section 119, Cooperative Agreements with
Alaska Native Organizations for the conservation of polar
bears, sea otters, and Pacific walrus.
In addition, I will be recommending that the Act's
authority be expanded to allow Alaska Native Organizations, in
cooperation with the Service, to manage subsistence use of
marine mammals prior to individual stocks becoming depleted.
Mr. Chairman, the Section 119 Amendment, in 1994, has been
a positive addition to the MMPA. Marine mammals are of vital
importance to Alaska Natives for both cultural and subsistence
purposes and are visible indicators of change in the marine
environment. Alaska Natives, as subsistence users, are often
first to note changes in marine mammals that are important to
assessing conditions in the marine environment.
Section 119 recognizes these connections and allows their
potential benefits to be realized. We currently have three
Section 119 cooperative Agreements in place with the Alaska Sea
Otter and Steller Sea Lion Commission, the Alaska Nanuuq
Commission, and the Eskimo Walrus Commission. These Agreements
have been in place since 1997 and provide a contractual
framework for accomplishing specific activities for the
conservation of marine mammals.
A basic benefit of these Agreements has been improved
communication between the Commissions and the Service and among
the Commission members who represent the Alaska Native hunters
and their respective villages.
To illustrate the value of Section 119, I will share with
you three examples of the success we have had in working with
our Alaska Native partners. My first example is the Cooperative
Biological Sampling Program and mortality surveys of sea otters
around a fish-processing facility in Cordova. This cooperative
effort with the Alaska Sea Otter and Steller Sea Lion
Commission is leading to a change in the facility's discharge
practices and permits from the EPA to protect sea otters that
have been dying from parasite infections caused by eating waste
from processed fish.
In another example, the Alaska Nanuuq Commission has been a
full partner with us in developing a draft Agreement between
the United States and the Russian Federation on the
conservation and management of the Alaska-Chukotka Polar Bear
population. In addition, we have assisted the Nanuuq Commission
in a study to compile traditional ecological knowledge of polar
bears in the Chukotka region of Russia.
My third example of successful partnership is our work with
the Eskimo Walrus Commission. A recent product of our
partnership with this Commission is the collection of walrus
harvest information in Russia. The collaboration began with a
bilateral workshop on harvest monitoring followed by training
of Russian harvest monitors in the Village of Gambell on St.
Lawrence Island. And, as you know, that is in the Bering Sea
just about 60 miles from Russia. The newly trained Russian
native monitors collected harvest data in Chukotka that
provided vital important information on the Pacific walrus
population.
Mr. Chairman, although we have made significant progress in
working with our Alaska Native partners on marine mammal
conservation matters, we could do much more if we had expanded
authority for co-management Agreements. Currently the MMPA does
not include enforceable provisions for management of
subsistence harvests of marine mammal stocks before they become
depleted.
Under existing Section 119 and cooperative Agreements, we
can work with our Native partners to develop management
strategies implemented through local authorities, such as
tribal ordinances. However, this arrangement is strictly
voluntary on a village-by-village basis with further
limitations related to the scope of jurisdiction and
enforcement authority.
Our goal is to expand Section 119 to include enforceable
management provisions governing the Native subsistence harvest
of marine mammal stocks prior to depletion through co-
management Agreements. We are working with our Alaska Native
partners and the National Marine Fisheries Service to develop
such a proposal. When we reach consensus on the provisions of a
co-management proposal, we will advise the Subcommittee.
Mr. Chairman, in closing, I want to emphasize the Service's
commitment to working with Alaska Native partners in the
conservation and management of marine mammals. Ultimately, we
believe it will be more effective to conduct our marine mammal
conservation responsibilities through enhanced co-management
Agreements with Alaska Native subsistence users and the
appropriate federal partner. Such Agreements can be structured
to ensure our Alaska Native partners have the first opportunity
to address specific management issues and concerns.
We do envision, however, that the federal government will
retain ultimate authority for enforcement of the MMPA,
international treaty obligations, stock assessments, and permit
programs.
Mr. Chairman, that concludes my remarks and I will be happy
to answer any questions. Thank you.
[Prepared statement of Mr. David B. Allen follows:]
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Mr. Young. Thank you, David. That was excellent testimony
and it was right on time. That usually doesn't happen.
Mr. Allen. Thank you.
Mr. Young. Penny, you are up.
STATEMENT OF PENELOPE DALTON, ASSISTANT ADMINISTRATOR FOR
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, U.S. DEPARTMENT OF COMMERCE
Ms. Dalton. Okay. Between the tour buses and the roadwork,
getting from Silver Spring down here is quite an adventure.
Good morning, or good afternoon, Mr. Chairman. I am Penny
Dalton, Assistant Administrator for NOAA Fisheries. Thank you
for inviting me to testify today on development--
Mr. Young. Penny, is that mike on?
Ms. Dalton. Yeah.
Mr. Young. Okay. Bring it a little closer.
Ms. Dalton. Testify today on development of co-management
Agreements with Alaska Natives under the Marine Mammal
Protection Act. Section 119 of the MMPA authorizes the
Secretaries of Commerce and Interior to enter into cooperative
Agreements with Alaska Native Organizations for the co-
management of marine mammals subsistence harvests.
In 1997, NOAA Fisheries, the U.S. Fish and Wildlife
Service, the U.S. Geological Survey, and the Indigenous
People's Council for Marine Mammals signed an umbrella
Agreement. The umbrella Agreement establishes guiding
principles for the negotiation of subsequent Agreements. It
calls for stocks to be maintained at levels that support
subsistence harvests and equal participation by Alaska Natives
and harvest decisions. Other elements include collection
analysis of population data, adequate enforcement, education
activities, and management plans.
Co-management Agreements have been developed under Section
119 for beluga whales, harbor seals, Steller sea lions and
northern fur seals. Prior to enactment of Section 119, an
Agreement was signed with the Alaska Eskimo Whaling Commission
for co-management of bowhead whales.
With respect to beluga whales, NOAA Fisheries entered into
an Agreement in December 1999 with the Alaska Beluga Whale
Committee to manage the western Alaska populations. The
Agreement covers beluga whales in the Beaufort, Chukchi, and
Bering Seas and promotes scientific research on the species.
A separate Agreement to co-manage this year's harvest of
Cook Inlet beluga whales recently was negotiated with the Cook
Inlet Marine Mammal Council and is now in the NOAA clearance
process. Authorized legislatively, the Agreement specifically
provides for the allocation of one whale to the Native Village
of Tyonek. It is subject to the National Environmental Policy
Act and we currently are developing an environmental impact
statement. A new Agreement will be negotiated for harvest in
2001 and beyond based on the outcome of the proposed depletion
determination and the agency response to a petition to list
Cook Inlet belugas as endangered.
In April 1999, NOAA Fisheries entered into an Agreement
with the Alaska Native Harbor Seal Commission for harbor seal
conservation and management throughout Alaska. Under the
Agreement, a committee comprised of commission officers and the
NOAA Fisheries staff will develop action plans for harbor
seals. The plans will identify activities to be undertaken by
the parties for population monitoring, harvest management,
education, and research.
On Steller sea lions and northern fur seals, we currently
have a draft Agreement with the Tribal Government of St. Paul
in the NOAA clearance process. This Agreement provides for co-
management of subsistence harvests on St. Paul Island and
establishes a committee similar to those under other
Agreements. It calls for cooperation and monitoring, research,
disentanglement programs, maintenance of fur seal rookeries,
and education programs.
One significant issue in developing co-management
Agreements is which Alaska Native group should participate.
Section 119 and the accompanying House report suggest that any
Native organization or tribal government that represents
subsistence users can be party to an Agreement. However,
Administration policy directs that agency actions be
implemented in a manner that is respectful of tribal
sovereignty and allows for input by tribal officials.
Consequently, NOAA Fisheries has tried to enter into Section
119 Agreements with tribal governments or organizations that
have tribal authorization.
This preference also stems from the need to develop
enforcement mechanisms for Agreements. All the co-management
Agreements developed so far address enforcement. However, the
MMPA currently does not provide authority for federal process
to support enforcement and adjudication of violations by Native
organizations.
Nor, does NOAA Fisheries have authority to regulate Native
marine mammal harvests prior to a depletion finding unless the
take is wasteful. Thus, the preferred enforcement mechanism is
for tribal government or council to adopt ordinances that
reflect the provisions of the Agreement or management plan and
then adjudicate violations through whatever traditional
conflict resolution process is applicable. However, it may be
cumbersome for statewide commissions representing many villages
to attempt to gain passage of such ordinances from all member
tribes. In addition, these ordinances would not be applicable
to hunters unaffiliated with the member tribes.
Another concern is the applicability of the Federal
Advisory Committee Act to committees established through co-
management Agreements. The Unfunded Mandates Act granted FACA
exemptions to meetings with elected tribal government officials
or their designated employees.
We interpret this to provide a FACA exemption to officers
of Native marine mammal commissions authorized by tribal
resolution. However, this exemption probably could not be
applied to organizations that are not tribally authorized.
NOAA Fisheries has been involved in discussions regarding
such issues with the Indigenous People's Council for Marine
Mammals and the Fish and Wildlife Service. Discussion
participants agree that strengthening enforcement provisions in
Section 119 Agreements, or within their associated management
plans, would greatly improve conservation. We also agree that
it is worthwhile to explore options for regulating marine
mammals subsistence harvest by Alaska Natives prior to
depletion, but only through mutually agreeable arrangements. We
currently are working together on the details of how such an
authority could work.
I welcome the opportunity to discuss the resolution of
these and other important marine mammal conservation issues.
Thank you.
[Prepared statement of Ms. Penelope Dalton follows:]
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Mr. Young. Thank you. I am going to make this relatively
short because I want to get to my Alaskan witnesses. But, Dave,
why are the research portions of the cooperative Agreements
renewed annually? Is it based on annual appropriations? Why is
it just one year?
Mr. Allen. That is the convention that we have always used
for these types of Agreements. And clearly the intent is to
continue it beyond one year, but we do renew them on annual
basis.
Mr. Young. But wouldn't it be better to make it a two-year
or three-year deal, or would you still prefer to leave them one
year?
Mr. Allen. I personally wouldn't have any objection in
doing that. As I understand, but I can certainly check this, I
think it is a contracting convention that governs this. It is
not something that we do by choice.
Mr. Young. Now, we passed this Act in 1994, I believe. And
you have an Agreement with three Commissions now.
Mr. Allen. Yes.
Mr. Young. And you reached those Agreements when?
Mr. Allen. We received our first appropriation to fund
Section 119 Agreements in Fiscal Year '96--I am sorry, '97, in
the fall of '96.
Mr. Young. So they reached Agreement in '95, one year prior
to the Appropriation.
Mr. Allen. We concluded an Agreement within a few months
after we received the first appropriations--
Mr. Young. Which three--
Mr. Allen. --in early--
Mr. Young. Which three do you have an Agreement with?
Mr. Allen. We have an Agreement with the Alaska Nanuuq
Commission, who deal with polar bears; the Eskimo Walrus
Commission, and the Alaska Sea Otter and Steller Sea Lion
Commission. All three of those commissions.
Mr. Young. Okay. And you had some suggestions on how to
improve this. And what were those two suggestions?
Mr. Allen. The principal suggestion is that we expand the
authorities within Section 119 to allow for harvest management
for subsistence purposes prior to depletion. As you know,
presently, under the Section 101(b), Native Exemption, there is
no management regime and there is no federal authority to
actually conduct any kind of a management program until
depletion occurs. And, of course, the concern everyone has is
that that is not when we want to begin management as partners.
That is what we want to prevent.
Mr. Young. What you are suggesting now is the only time
they become involved is after the depletion occurs. It would be
better to have them involved prior to the depletion. Is that
what you are saying?
Mr. Allen. Yes. And the only time we get involved, that is
the federal government, in terms of any kind of management
regime that has any enforceable provisions, is only when
depletion occurs. So the basic recommendation is to create
authorities through co-management Agreements that would allow
for management programs working with the Alaska Native
Commissions so that we could maintain a harvestable surplus for
subsistence purposes prior to depletion.
Mr. Young. David, are you stationed in Alaska or are you
stationed down here?
Mr. Allen. I am stationed in Alaska.
Mr. Young. Okay. Penny, how many Agreements do you have?
Ms. Dalton. We have five now. One of them was--or at least
two in the clearance process, two completed, and one that was
actually done. The Alaska Eskimo Whaling Commission was done
before Section 119 was enacted.
Mr. Young. How many--okay--you say five. You have
jurisdiction over five. Right?
Ms. Dalton. Yes. We have five either in place or in the
works.
Mr. Young. Okay. How many are in the works?
Ms. Dalton. The one--there are two in the works. For Cook
Inlet Marine Mammal Council and also for the Tribal Government
of St. Paul for sea lions and northern fur seals.
Mr. Young. And what is holding that up?
Ms. Dalton. I think we just recently created--completed the
Agreements and they are still just moving through our clearance
process.
Mr. Young. And how soon do you expect that to be finalized?
Ms. Dalton. And so it sounds like within the next few
weeks. We will get you a definite date for the record.
Mr. Young. Okay. Now, the thing I am curious--and I was
here when we did this--why did we split it up between National
Marine Fisheries Service and Fish and Wildlife?
Ms. Dalton. You mean--I think it is--
Mr. Young. Why do you have beluga whales and bowhead whales
and whatever else it is--
Ms. Dalton. We have the--primarily more ocean-going--the
species that spend more of their time in the ocean and Fish and
Wildlife Service has the species that spend a significant
portion of their time on land is my understanding of the
division.
Mr. Young. But they are all marine mammals.
Ms. Dalton. Yes.
Mr. Young. Okay. And I don't want to ask either one you
this, but I am going to. Turf-wise, wouldn't it be better to
have all of them under one program?
Mr. Allen. I would love--
Ms. Dalton. While I won't pretend that there is Agreement
between the two departments on every marine issue, I don't
think, at least in the time that I have been here, that there
has been a big problem on marine mammals with the
jurisdictional split because it is pretty clear who has which
species.
Mr. Young. Okay. I will leave that go for a while because
we are in the midst of some other witnesses. But, see, I have--
and this is very important to me because I happen to agree with
what David says, and I hope you agree the same way. I think
there ought to be the management probably prior to the
depletion occurrence--
Ms. Dalton. Yes.
Mr. Young. --and try to stop that if necessary. I do think,
though, that even though it is a cooperative Agreement, in the
form of an enforcement, I think if they had a better role in
enforcement, it might work. Believe it or not, it does work
under the Whaling Commission.
I do think that more responsibility that is placed upon the
groups, the better management you have of the species
themselves, especially if I am able to give them a little
better say. Because a lot of times, decisions are made in your
agency and even Fish and Wildlife Agency and even above your
pay grade that do it on a basis of pressure and emotionalism
instead of reality.
And I have been one that always said most of laws we have
passed here have been misused because there has been little
science or really information applied to the law. We have
interest groups on both sides, be it commercial fisherman, or
be it the environmental group, and there is no way that the
information could really be based upon sound facts of science.
I think that the commissions themselves--I know the Whaling
Commission did this--they actually got science to recount the
whales. And the first time there was only 2,500 bowhead whales
left, and through their science they established the fact there
was over 6,000 and I think there are around 10,000 whales now.
Science is very important in this and the front edge is
very important. Prior to--it is always somebody saying, all
right, to establish sea lions they are all dead because of, and
no science to back it up. So you have heard me on this before
about what areas to study.
So I just--I hope what I am hearing is correct, that you
are working hard to make these Agreements work. That I hope
maybe, David, that you will look beyond the Fish and Wildlife
as far as other parts of your agency. And there may be better
ideas about how managing other game than marine mammals. Bad
thing for me to say, but keep that in mind.
Mr. Allen. With your guidance, Mr. Chairman.
Mr. Young. Yeah. Yeah. If we can get more interest on--and
someone has something to lose or gain by it, there is--better
management occurs. So I don't have any other questions. The
gentleman from the great State of Maryland, outstanding
Chesapeake protector, provider of great wisdom, would you like
to ask any questions?
Mr. Gilchrest. I am fine.
Mr. Young. I thank both of you. And I will be communicating
with both of you as far as my interests in this. This is
important to me and I want it to work. And maybe we can expand
upon it. And just remember, those that are on the ground
sometimes have a little better knowledge of what is really
occurring out there instead of someone reading something in the
Smithsonian Magazine or from the National Geographic or from a
newspaper in San Francisco.
So thank you very much. I appreciate it. And I am sorry you
were so late, Penny, as far as the traffic. And for your
information, we will be submitting some written questions to
you so you can have the opportunity to respond to those as far
as the agencies.
The next panel, Caleb Pungowiyi, Chairman of the IPCoMM
Reauthorization Committee; Charlie Johnson, Alaska Polar Bear
Commission; Monica Riedel, Alaska Native Harbor Seal
Commission, Alvin Osterback, Aleut Marine Mammal Commission,
son of the great Osterback representative that I served with;
Lianna Jack, Alaska Sea Otter and Steller Sea Lion Commission.
Thanks for coming to the table and appreciate all your long
travels and appreciate your being here today. And we will go--
Caleb, you will go first, please.
STATEMENT OF MR. CALEB PUNGOWIYI, CHAIRMAN, MMPA
REAUTHORIZATION COMMITTEE, INDIGENOUS PEOPLE'S COUNCIL FOR
MARINE ANIMALS, KOTZEBUE, ALASKA
Mr. Pungowiyi. Thank you, Mr. Chairman. My name is Caleb
Pungowiyi or Loman [ph] is my Native name and I am from--
originally from a Village of Savoonga. I am presently the
president of Robert Aqqaluk Newlin, Sr. Memorial Trust in
Kotzebue. I want to thank the Chairman for the invitation to
testify before this Committee and I appreciate the opportunity
to do so.
I am testifying today as the Chairman of the
Reauthorization Committee of the Indigenous People's Council
for Marine Mammals and also as a former Executive Director of
the Eskimo Walrus Commission. Mr. Chairman, back in 1994, I
testified before this Committee urging the Congress to amend
the Marine Mammal Act to add Section 119 to involve the Alaska
Native many commissions to enter into co-management Agreements
with federal agencies.
And I want to state today that those of us who have entered
into co-management Agreements that those Agreements, in terms
of conservation of marine mammals and also learning more
science about the status of marine mammals has been very
successful. And I think as you will hear from the rest of the--
our panel this afternoon that this message is something that
the can be echoed with all the commissions that have entered
into co-management Agreements.
Also the fact that in 1994 we had testified that there was
a large communication gap between the agencies and the Native
community. But today I think you have heard that there is
improved communications. There is cooperation and more efforts
to work together in terms of conserving and protecting the
species that exist in Alaska.
IPCoMM is a consortium of 15 Alaska Native Commissions,
tribes and organizations working to conserve and protect the
marine mammals and Alaska Native users of those marine mammals
for subsistence and making of handicraft and clothing. Together
these organizations cover most marine mammals populations found
in Alaska and represent those Native villages most dependent
upon marine mammals for their nutrition and culture.
In closing in 1994, as I mentioned earlier, the Section 119
has resulted in a number of effective partnerships between Fish
and Wildlife Service, National Marine Fisheries Service, and
Alaska Native Organizations. This is not to say that the
implementations came easily. I think that, as you will hear
from the commissions, that there were lengthy negotiations,
times when it seemed like there would never be an Agreement
reached between the agencies.
But you also want to applaud that--the efforts that were
made by U.S. Fish and Wildlife Service, especially Dave Allen,
as the Regional Director, that the implementations probably
came a lot easier and quicker than if it had been another
director in his place.
We also negotiated an umbrella Agreement, as mentioned by
Penny Dalton. And this umbrella Agreement was to establish
guidelines so that when different commissions negotiated the
Agreements with federal agencies that there was a standard set
it place so that these Agreements have some continuity and some
equality in terms of managing the species that are used for
subsistence.
As Dave mentioned, in 1997, the Walrus Commission, the
Polar Bear Commission, and the Sea Otter Commission signed
Agreements with Fish and Wildlife Service to co-manage those
species that are under the management of Fish and Wildlife
Service. The funding for that came through an appropriation
that was earmarked as an add-on to the Fish and Wildlife
Service budget to enter into co-management with these here
entities to a tune of $250,000.
When we agreeing between ourselves divided to--agreed to
divide this money between the three entities--$70,000 for the
Sea Otter Commission, $80,000 to the Walrus Commission, and
$90,000 to the Polar Bear Commission. Mr. Chairman, I must
state that this amount of money barely covers the intended
activity that we agreed to when we signed these Agreements with
the U.S. Fish and Wildlife Service.
The travel alone for our commissions to meet exceeds
$25,000 to $30,000 because of the large area that we cover
under the jurisdictions or where the species habit--oh, I can't
think of what to say. But the coastline, for example, for the
Walrus Commission, is three times the coastline of California.
It goes from Bristol Bay all the way up to Barrow. And we
cover--there are about 35 communities that either directly or
indirectly depend upon walrus for their utilization.
And so that is one of the shortcomings that we have seen in
implementing these co-managed Agreements that there isn't
enough adequate funding to cover the activities that are needed
to fully implement the intention of the Congress in enacting
Section 119.
In negotiations with NMFS or the National Marine Fisheries
Service, did not begin until--in earnest in 1998. And while
perhaps the best model for a cooperative Agreement is the
Alaska Eskimo Whaling Commission, Mr. Chairman, the agency has
been slow in implementing the Section 119 Agreement.
The first one was not signed until April of 1999 and there
are still negotiations going on with other commissions. We
believe this action, or lack of action, is on part of National
Marine Fisheries Service because co-management Agreement,
obviously, is not a priority within the agency. And it is
reflected by the fact that the President's budget has never,
and I repeat, never, contained a provision or a request for
Section 119 funding.
In closing, I want to highlight some of the activities that
the Walrus Commission has done since I am past Executive
Director for the Walrus Commission. We began as a Commission in
1978 and this was in due to the fact that we felt strong
concern when the State of Alaska had management of walrus, but
there was some conservation issues that needed to be addressed
and the fact that State of Alaska refused to recognize some of
the communities that were legally recognized to hunt walrus.
And the Village of Togiak, as you remember, sued the State
of Alaska and won, but the Native was exemplified by the
Congress allowed for the taking of walrus for subsistence and
anigraft purposes. Since then we--
Mr. Young. How much more time do you have? Go right ahead.
I have to excuse myself and make one phone call and I will be
right back, but he will take the chair. So--
Mr. Pungowiyi. Okay. As Dave mentioned earlier, we have a
number of scope awards that we have identified with the Walrus
Commission to work with in the conservation of walrus. One of
them is the discussion of pilot bilateral Agreement with Russia
on the shared population of walrus being in two countries. In
1995 there was a meeting in Chukotka where a protocol was
signed to start negotiating an international treaty on the
conservation of walrus in the two countries.
We have asked that there be no formal negotiations with
Russia until we have seen the implementation of the Polar Bear
Agreement between Russia. But we feel that the success or
problems that may be associated with the Polar Bear Agreement
will reflect on how we negotiate the new Agreement that will
deal with walrus population.
But we will--that has not kept us from talking with the
Russians. We have started our dialogue in developing our
Native-to-Native Agreements on the management of walrus between
the two areas. We have started monitoring--harvest monitoring
programs in both counties. The Walrus Commission and the Fish
and Wildlife Service has increased funding to implement the
tabulated the harvest--Native harvest has occurred on both
sides of the border so that we have a better idea to the number
of walrus that are being harvested in both countries.
The Walrus Commission also has a biological sampling
program where we collect--we ask the hunters to collect
biological samples so that we have a better understanding of
the population indices on the walrus. We collected teeth, the
reproductive tracts, and also other organs to also look at the
contaminants and pollution that may be building up in the
tissues of the polar--walrus.
And these samples are provided by the hunters. We do, at
the end of the season, have a drawing so that those who have
given the samples will be like a lottery where they will
either--we give one rifle, a barrel of gas, and $50 shopping at
the nearest shopping center which usually means a native store.
So it is not a whole lot of money, but it is something that
entices the hunters to participate in this sampling program
which is very, very important. And it indicates the age and the
sex and the number of animals that are being taken and also the
health status of the walrus population.
And, Mr. Chairman, I do want to say that our--there are
some things I would like to speak and recommendations to may
perhaps make some changes to the Section 119. And that is that
I--as I mentioned earlier, the co-management Agreements have
been stymied by a lack of adequate funding. And we would urge
the Congress to fully fund the intended appropriations for
implementing the co-management Agreement.
Secondly, we would like to strengthen to authorize the
parties to Section 119 to enforce conservation and regulatory
measures agreed upon and incorporated into Section 119. We
agreed that it is important to have regulations prior to
depletion and that is something that can be worked in under
Section 119 of the Act. And that the federal agencies should be
empowered as negotiated by the parties through co-management
Agreements to provide a backup role if the parties agree to
such a role.
We also believe that Secretaries should try to maximize to
the extent possible to work with affected Alaska Native
Organizations and tribes in implementing regulations that are
adopted after the listing of marine mammals under MMPA or ESA.
We also would ask that the definition of Alaska Native
Organizations be amended to require organizations entering into
co-management Agreements be either tribal governments or
tribally authorized by the government.
Mr. Chairman, I want to thank you for the opportunity and
we have other written testimony that will be given by myself as
well as others. Thank you very much.
[Prepared statement of Mr. Caleb Pungowiyi follows:]
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Mr. Young. Thank you very much. We have a vote in about 15
minutes and we will expedite as far as possible and I will try
to get back, but just keep that in mind. Charlie?
STATEMENT OF MR. CHARLES JOHNSON, ALASKA NANUUQ COMMISSION ON
MMPA CO-MANAGEMENT
Mr. Johnson. Thank you, Mr. Chairman. My name is Tomungnuaq
or Charlie Johnson, if you don't speak Inupiat. I am the
Executive Director of the Alaska Nanuuq Commission and a member
of the National Marine Fisheries Scientific Review Group.
The Alaska Nanuuq Commission is now in its third year of
co-management of polar bear with the U.S. Fish and Wildlife
Service under Section 119. The Commission was organized by the
tribal governments of north and northwest Alaska to represent
the villages on matters concerning the conservation and
sustainable subsistence use of polar bear.
Our contract calls for the commission to represent the
villages and to assist the Service in developing a bilateral
treaty with Russia on the conservation of the shared polar bear
population in Alaska and Chukotka. Our contract also helps--
also calls for the development of a Native-to-Native Agreement
to implement that treaty.
The Alaska Nanuuq Commission also has a contract with the
National Park Service Beringia Program to collect information
on polar bear habitat use in Chukotka gathered from the
traditional knowledge of hunters in the villages--coastal
villages of Chukotka. Additionally, the Commission has a small
contract with the National Marine Fisheries Service to collect
harvest data on ice seals from the villages of northwest
Alaska.
We believe that there are some changes needed to be made to
MMPA. Polar bear hunting has been banned in the former Soviet
Union since 1956. In 1989, the polar bear population that
Russia shares with Alaska in the Bering and Chukchi Seas was
reclassified by the former Soviet Union as recovered and
notified the U.S. that it wanted to share in the harvest of
polar bears with Alaska Natives.
A bilateral Agreement between the U.S. and Russia on the
conservation and management, which includes the implementation
of the Agreement by a parallel Native-to-Native Agreement, has
been developed.
In order for the Native-to-Native Agreement to be
successful, change to MMPA Section 119 are needed. These are
management before depletion. If Russia is to share in the
harvest, it means numbers and numbers means quotas and quotas
means management before depletion. But management before
depletion ordered any time must be accomplished only through
co-management with Alaska Natives.
Secondly, enforceable tribal ordinances. The Commission
derives its authority from the tribal governments which also
must accept the quotas and has authority to enforce the quotas.
Federal regulations to enforce these ordinances must also be
developed. Thirdly, additional funding. The fully authorized
funding for Section 119 has never been requested by the
Secretaries of Interior and Commerce. In fact, the day before
yesterday, National Marine Fisheries flatly told us that
Section 119 is not a priority for National Marine Fisheries.
If co-management is to become more successful, full funding
and additional funding is needed. In my written testimony I
have indicated how these funds would be used by the Alaska
Nanuuq Commission. The success of the Agreement with Russia and
our Native-to-Native Agreement, as mentioned by Caleb, is
critical in that it will set the standard for future Agreements
of shared species between Alaska and Russia.
Additional help that we can get from Congress in--that is
related but not necessarily part of the MMPA is that Congress
can assist by working with the elected Deputies to the Duma,
particularly from Chukotka and we recommend that you help
educate them about Alaska and how co-management works.
Another issue is research. Research from--of the U.S. Fish
and Wildlife is now split off into the U.S.G.S., which has no
co-management mandate. Alaska is--we need--the commissions
needs involvement in the setting of resource priorities and the
current situation makes it difficult.
My last recommendation is that with the lack of interest in
the Department of Commerce for co-management with Alaska
Natives on marine mammals, consideration should be given by
Congress to transferring management authority of those species
that are used for subsistence to the U.S. Fish and Wildlife.
Thank you, Mr. Chairman.
[Prepared statement of Mr. Charles Johnson follows:]
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Mr. Young. Thank you, Charlie, and I appreciate that
Monica.
STATEMENT OF MS. MONICA RIEDEL, EXECUTIVE DIRECTOR AND CEO,
ALASKA NATIVE HARBOR SEAL COMMISSION
Ms. Riedel. Thank you, Mr. Chairman. My name is Monica
Riedel or Nalatoa [ph]. I am the Executive Director of the
Alaska Native Harbor Seal Commission located in Cordova,
Alaska.
The Harbor Seal Commission was organized by tribal
resolutions in 1995 to develop and implement an MMPA Section
119 Agreement with the National Marine Fisheries Service for
harbor seals. We finalized and signed an Agreement in April of
1999. Our geographic representation spans an area that is equal
to the width of the United States and was--and is within the
habitat range of harbor seals.
Harbor seals are vital to our diet and spiritual and
cultural well-being. Our current programs include a Community-
based Biological Sampling Program, coordination with the Youth
Area Watch Project, and we are in our third year of the Harbor
Seal Monitoring, Research and Management Program, which has
been fully funded through NOAA.
We also have entered into two cooperative Agreements with
the Alaska Department of Fish and Games Subsistence Division.
One is for a technical oversight of the Harvest Data Program
and another is for Informational Development of a CD-ROM on
Alaska marine mammals.
This past year we collaborated with the University of
Alaska, Fairbanks to expand the scope of the tissue archival
project to include Bering Sea communities and we are currently
collaborating with the Alaska Sea Life Center on future
projects.
Regarding self-regulation and co-management, Alaska Natives
have thousands of years of historical use of marine mammals and
we have established effective conservation methods. Now,
through co-management, the Harbor Seal Commission have become
equal partners with NMFS in resource management decisions.
Some of the difficulties incurred during the development of
the Agreement were, one, long-distance communications between
D.C. Headquarters and Alaska. Two, remoteness of our villages
made it costly to meet on a regular basis. Three, reaching
consensus on consultation and the enforcement process. Four, us
understanding NMFS's agency constraints that were often
translated by lawyers. And, five, them understanding our system
of oral history and conservation practices.
With regard to proactive management through our Section 119
Agreement, first in the Agreement we have established a co-
management committee structure made up of three NMFS
representatives and three Harbor Seal Commission
representatives. Secondly, NMFS recognizes tribal authority to
regulate our own members and the Harbor Seal Commission
recognizes the Secretary of Commerce's authority to enforce
existing provisions of the MMPA. Thirdly, a consultation
process will take place prior to listing stocks as strategic or
depleted under the MMPA or the Endangered Species Act.
Co-management has benefited Natives by the federal agency's
formal recognition of them as equal partners. The marine
mammals have benefited by having the primary users directly
involved in prioritizing research and management decisions.
Hunters and elders hold traditional knowledge that they
transfer and they transfer their conservation practices to
youth and researchers. Communication has vastly improved among
the ANHSC tribes and NMFS, but there is still room for
improvement and growth. With adequate support Harbor Seal
Commission is positioned to assume the responsibility of
monitoring the harvest formerly done by ADF&G Subsistence
Division.
Mr. Chairman, my recommendations for general improvements
to Section 119 are, one, strengthen Section 119 so that
agencies can share enforcement authority with tribally
authorized co-management partners. Two, Section 119 Agreements
need to be exempt from the Federal Advisory Committee Act.
Three, fully appropriate the authorized funding for Section 119
for developing infrastructure and tribal management plans,
collecting and analyzing population data, harvest monitoring,
cross-cultural training, educational projects, biosampling, and
tissue archival projects.
Finally, Mr. Chairman, the NMFS Alaska Region and the
Harbor Seal Commission are committed to the co-management
process as established in our Agreement and we are working hard
on long-term solutions to our common goals. Thank you.
[Prepared statement of Ms. Monica Riedel follows:]
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Mr. Young. Thank you, Monica. Alvin.
STATEMENT OF MR. ALVIN D. OSTERBACK, ALEUT MARINE MAMMAL
COMMISSION
Mr. Osterback. Mr. Chairman, and, Members of the Committee,
my name is Alvin D. Osterback. I am an Aleut, a member of the
Qagan Tayagungin Tribe, and Chairman of the Aleut Marine Mammal
Commission.
I am here today to speak to you on Section 119 of the
Marine Mammal Protection Act and how we have been able to
interact with government agencies and establish our role as set
forth in the Act.
The first meeting of the Aleut Marine Mammal Commission,
hosted by the Aleutian Pribilof Island Association, took place
in Dutch Harbor on May 27 and 28th of 1997. The Alaska
Department of Fish and Game, the Alaska Sea Otter Commission,
Rural Community Action Program, and National Marine Fisheries
Service provided the funding and technical support.
At this initial meeting each tribe selected a member and an
alternate to represent each community, the formation of the
Aleut Marine Mammal Commission was initiated, and they set
direction to get incorporated and set our starting goals.
The commission did not have the funds available to set up
the commission and having no funding, we used help wherever we
could find it. The Aleutian/Pribilof Island Association
assisted the Marine Mammal Commission to get the legal
paperwork completed and incorporate. The Aleutians East Borough
helped with the paperwork and our request for funding. The
Qagan Tayagungin Tribe provided office space and their staff to
assist when required. If it weren't for the help of these
entities, we would still be at square one.
I talked to the Aleut Marine Mammal Commission Board
members once using funds from the Qagan Tayagungin Tribe and
just a month ago using a teleconference call provided free of
charge by the Aleutians East Borough.
Just last week, while in Anchorage, Alaska, attending a
fishery meeting, I had a chance to meet with a representative
of the National Marine Fisheries Service and go over the budget
with we had submitted on how to best utilize the funding that
is available for the first year of operation.
At the time of this meeting I requested forward funding so
the Board of the Aleut Marine Mammal Commission would be able
to have a face-to-face meeting and complete some much needed
business as we have not had a meeting since our first meeting
of May of 1997. At this time I have not received a reply as to
whether this can be done.
If this is not possible, I am hoping the Aleutians East
Borough will be able to forward fund us and be allowed to pay
this funding back from the monies available to the Aleut Marine
Mammal Commission when funding is approved.
As you can see, we have been quite slow in getting on our
feet with this Commission. It is quite hard to do without funds
for startup. But thankfully the people of our area who have
access to and have available funds could see the importance and
need for this committee to exist and extended a hand to get us
this far.
We cover a very large area and range for the Steller sea
lion as well as other Marine Mammals and feel that a good
working relationship on co-management will help answer a lot of
questions in our communities to the subsistence use of marine
mammals as well as the commercial fisherman who interacts with
marine mammals while sharing and pursuing the fish resource.
To my knowledge, to date, there has been no interaction
between the National Marine Fisheries Service and the Aleut
Tribes of our area or the Aleut Marine Mammal Commission on the
status of Steller sea lions or other marine mammals in the
area.
We are very concerned with the decline in the populations
and feels that we should be consulted as our use and
interaction with the Steller sea lion has been ongoing for
thousands of years and we wish to continue this use, as a
subsistence food item and non-harmful co-existing and sharing
in the harvest of the ample fishery resources of the Aleutians
area as commercial fisherman.
I would like to thank the Committee and the Chairman for
the opportunity to testify.
[Prepared statement of Mr. Alvin D. Osterback follows:]
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Mr. Young. Thank you, Alvin. And I have noticed that there
is this comment about NMFS and we will be sending them some
questions. And I have been told now that there is going to be
expedited process. And as far as the funding goes, we will make
sure that the funding does take place. It does not seem
appropriate to have you to go other places to get funding when
we should have been doing it ourselves. Lianna.
STATEMENT OF MS. LIANNA JACK, EXECUTIVE DIRECTOR, THE ALASKA
SEA OTTER AND STELLER SEA LION COMMISSION
Ms. Jack. Thank you, Mr. Chairman, for this opportunity to
testify.
Mr. Young. Move that closer to you or turn it on, please.
Ms. Jack. Okay. My name is Lianna Jack. One of my Yupik
names is Daviuk [ph]. And I am Executive Director for the
Alaska Sea Otter and Steller Sea Lion Commission. Today I would
like to speak of the co-management experiences of our
commission.
TASSC was formerly known as the Alaska Sea Otter
Commission. In 1998, our Commission added the statewide
advocacy of Steller sea lions. We are going into our 12th year
of operation and represent a total of 51 tribal organizations.
Our goals are to ensure Alaska Native participation in sea
otter and Steller sea lion management and to continue the
customary use of marine mammals by Alaska Natives for
Subsistence. We strongly believe that local participation in
management will result in conservation that prevents a depleted
listing due to subsistence harvest. Based on our goals, we
developed regional marine mammal plans with Bureau of Indian
Affairs and Administration for Native American grants.
Since then, we have signed an MOA with the U.S. Fish and
Wildlife Service and entered into our third co-management
Agreement. For the past three years, we have received 70,000
per each Agreement. Our staff, which includes Alaska Native
biologists, actively work with the Service on research and
management.
We work on biological and harvest monitoring projects from
subsistence harvested sea otters. To date, more than 300
samples have been collected. These samples have provided the
basis to conduct a large-scale genetics study to address sea
otter stock concerns.
In the '97 Agreement, we focused on developing local
management plans and initiated one project on using local and
traditional knowledge to document the growth and dispersement
of sea otter in Southeast Alaska. The local management plan
developed by Sitka Tribe of Alaska has served as a model as
other communities begin managing their subsistence resources.
In the '98 Agreement, we developed a small boat survey
protocol and focused on training local people to conduct these
surveys. The small boat survey protocol provides communities
with the ability to develop their own population trends on the
distribution and abundance of sea otters in their area.
In the '99 Agreement, we are focusing efforts on the
decline of sea otters in the Aleutians. In cooperation with
researchers, our efforts will include standardizing the small
boat survey protocol so that locally conducted surveys can
serve to estimate population trends.
Another area of interest is Port Heiden in the Bristol Bay
area where this winter heavy storms moved the Bering Sea ice
pack south and stranded otters. In response, we focused survey
effort on the sea otter haul-out to assess mortality and
extent.
While these projects have been successful and provided
valuable management and biological information, we could do so
much more if the Service would receive the entire appropriation
amount within Section 119 and our funding increased.
Since we have taken up Steller sea lion advocacy, we have
communicated with NMFS to negotiate and sign a co-management
Agreement. At our last board meeting in February, NMFS met with
our board to begin in earnest discussion on an Agreement. We
have planned a meeting next month for further discussions.
Co-management activities will hopefully include projects
that address sea lion issues and management and include local
people to collect critical biological and ecological
information.
We ask that TASSC is granted funding to implement projects
we have discussed with NMFS, which include harvest monitoring,
small boat surveys, and biological sampling.
We are a successful commission in that we accomplish needed
projects to help manage and conserve marine mammal populations.
We are known for our productive record and tough, but
meaningful, relationship with the Service. We hope to be given
that opportunity by receiving continued funding for sea otters
and designated funding for sea lions. TASSC shares the concerns
that you have heard today and we are in agreement with the
recommendations you have heard on the Marine Mammal Protection
Act.
Thank you again, Chairman, for giving our commission the
opportunity to testify.
[Prepared statement of Ms. Lianna Jack follows:]
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Mr. Young. I want to thank the panel. I want to also, while
I am thanking you, you came forth with some recommendations
and, Lianna, you brought that out. And that is important we
have these hearings because I don't know exactly what to do and
I do appreciate the recommendations. I am a little curious. Do
you feel that you are equal partners with the agencies--this is
a generic question to anyone who wants to address it--in
developing these programs? Charlie?
Mr. Johnson. Mr. Chairman, the Alaska Nanuuq Commission, I
think, has been a very equal, particularly in negotiation of
the bilateral treaty with Russia. That has given us, I think, a
real good standing with the Fish and Wildlife Service and they
have been very supportive of the conditions that Alaska Nanuuq
Commission wanted in the treaty. So I feel very strongly that
we--in this particular case, we are an equal partner.
Mr. Young. Okay. Now, and, Charlie, you are talking about
the treaty, but I am talking about management within the
domestic area. Are you--or do you feel as you are co-equals
with the agency?
Mr. Johnson. Not at this point because, you know, we are
expected to do a whole lot with a very little amount of money.
We can't be an equal partner with somebody that has millions
when we only have a few thousand.
Mr. Young. Okay. Now, this is for anybody who wants to jump
in here. What happens if there is an Agreement with the
commission with all the villagers, which I think, Monica, you
mentioned this? Do you have any enforcement capability?
Ms. Riedel. At this time, we only can self-regulate. We
don't--
Mr. Young. Just within your own area.
Ms. Riedel. Yes, Mr. Chairman. We don't have the authority
like the NMFS does with regards to the provisions with Native--
take, particularly wasteful take?
Mr. Young. That is one of the main ones with me.
Ms. Riedel. Yeah. That is the main one.
Mr. Young. Now, if that takes place, does the--your case is
NMFS. Right? Or Fish and Wildlife?
Ms. Riedel. NMFS.
Mr. Young. Okay. Does NMFS enforce or do they just ignore?
Ms. Riedel. Mr. Chairman, with the Agreement, they are now
committed to discuss any of these issues with the Harbor Seal
Commission prior to any action.
Mr. Young. Okay. Now, would you want enforcement authority?
Ms. Riedel. I would say it is very important for us to be
able to have that authority to self-regulate, Mr. Chairman.
Mr. Young. Well, I--
Ms. Riedel. Yes.
Mr. Young. Personally, I think it would be extremely
valuable. I know--
Ms. Riedel. Yes.
Mr. Young. --as hard as it may be, we do have individuals
that, within our own groups, that take--and I call it--want and
taking and wasteful use. And I believe your own kind can be
best to supervise that. We--I have seen it on my salmon where
people will bring in 150 salmon and go have a party and they
all perish. That shouldn't be allowed, but the only person who
is going to enforce that is actually the State Fish and Game.
And so nobody gets--and it is a bad example to set for
anybody else. And I have always said this is wrong because that
takes away the whole concept of a heritage use of a species.
And that is my own personal opinion. Do the--do you--I notice
there is a little crossover. Do all of you cooperate with one
another?
Ms. Riedel. Yes, we do, Mr. Chairman.
Mr. Young. Is that agreeable? Everybody agree with that?
Ms. Riedel. With exception of the new commission, the Aleut
Commission, who just formed, all of us are, as Caleb mentioned
earlier, members of the Indigenous People's Council for Marine
Mammals which meets usually a couple of times a year where we
can discuss common issues.
Mr. Young. Okay. Okay. The gentleman from Maryland. Does
anyone like to make a comment on this? I met with most of you
the other day, but we are--we want to rewrite this legislation
if we can do it correctly. I tend to notice that there is a
little bit of reluctance of NMFS' part.
I have one last question and I know my good friend from
Fish and Wildlife is behind you and he might want to comment.
Why shouldn't--why should you be co-partners? Why can't you be
the managers of--with supervision from the agencies? And there
is a difference. And I mean, the Fish and Wildlife guy can kick
in here. I mean, I have a little concern because you hit the
idea when there is a lot of money and you don't have any
money--if the money that they have, if you could get it and
manage it with their supervision, it would seem that it would
be--work out a whole lot better than to have all the manpower
and all the money and, Mr. Fish and Wildlife, you kick in first
if you want to and then sit down because they are all ganging
up on you. But go ahead.
Mr. Allen. All right. I mean, you have hit the nail on the
head, Mr. Chairman. That is exactly what I think what our goal
is here. What we want by this expanded authority is to have the
enforceable provisions in the Act that allows us to back up
basically local enforcement. That just doesn't exist.
As I mentioned, and we do work right now with local
communities to try to develop local ordinances, but, as you
know, those only affect tribal members within that community.
So really what we are trying to strike here is a situation
where we would have fair and equitable rules across the state
for all eligible subsistence users. And working through the
commissions, we would expect that they would take as much as
the responsibility as they want in terms of developing the
rules and regulations associated with--
Mr. Young. Well, David, what I am suggesting, and I
appreciate your comment--what I am suggesting here--you don't
see any objection then to contracting with the commissions
because you have access to monies that they can't access. There
is nothing for that in the budget. If we get the same result,
you could be the boss, but they would do the work, but they
also get the money to do the work.
Mr. Allen. Yes. And, in fact, we do some of that right now.
Mr. Young. Okay. Anybody else like to--Alvin?
Mr. Osterback. Yes, Mr. Chairman. You know, I think in the
past, over the--well, ever since the last reauthorization of
the MMPA, as far as, say, in our area with the Steller sea
lions, once we found out they were becoming an issue--the only
way it actually does work is the people that live in the area
and interact with the mammal are the ones that are truly going
to be the ones that save them or not.
So the areas are so large that any type of management, I
think, needs to belong in the hands of the tribal entities in
the area or the commissions. And I think they do a very good
job of policing themselves. And I think if there is interaction
or a co-management Agreement, the scientists can get all of the
information they need during takes, harvests, during the
subsistence use. So that portion is needed.
But on the enforcement side, I think unless the people that
are living in the area and interacting, the areas are so large
that unless they can be convinced by their own people that this
is something that needs to be done, it wouldn't happen anyway.
Mr. Young. Well, I agree. And there is also the cultural
clash. I mean, I remember when the Fish and Wildlife made the
raid on the walrus hunters out at Gambell. Right, wrong, or
indifferent, they may have been taking further tests, but the
image was big government attacking the aboriginal people that
live in the area. And that was the image I saw on television. I
may be prejudiced, but I mean, that is what I related to.
If, in fact, that type of thing was taking place and it was
illegal, it seemed to me it could be better taken care of by
the commission itself or someone in that arena. Because, at
least, it wouldn't have been on NBC or CBS and CNN, you know.
And I think there has been a little better control of what
would have happened.
The theme here is management prior to depletion. That is
really what you are asking. We have to change the Act, I
believe, to do that. And you would not be against the idea of
contracting out. I mean, yourselves being the ones that receive
the contract to do what you are doing now because it would give
you the money to do so. Would it not? Yeah, Charlie. And I have
got about five minutes and I do apologize.
Mr. Johnson. Mr. Chairman, just very briefly. To show how
this would work, we have a voluntary program right now which is
an Agreement between the North Slope Borough and the Inuvialuit
and the Southern Beaufort Sea. That is a voluntary Agreement
for quotas have been set to split the harvest of the polar
bears in the Southern Beaufort Sea. Of the--in the last ten
years, the quota has totaled a cumulative total of 800. Of
that, only 680 bears have been taken, which have been almost
equally split between Canada and the North Slope.
And another important factor with this voluntary Agreement
that has no funding or other jurisdiction from outside of the
North Slope, is that the protection of females. In that
particular population, only 25 percent of the female--bears
that are taken are females. In western Alaska out of the
Chukchi population, it is 40 percent. So that alone shows the
capability that we have of managing ourselves with--even
without outside support.
Mr. Young. Okay. One of these days, Charlie, you and I are
going to talk about the polar bear, but we won't do it today at
this hearing. I want to thank the panel and I do apologize, but
we are going to cut this hearing off because we have
approximately 50 minutes of voting and I know someone has to
catch an airplane. And I will--and we will, with your advice
and comments--and that goes for Fish and Wildlife and NMFS
also--I would like to see this thing work and work to a better
degree. I think it could be a model for other management of
game across the state as a whole. So it is something we might
consider.
I want to thank the panel and I appreciate you all coming
down. And we will send you some questions by the way. And the
record will be open for 30 days and I do thank you. This
Committee is adjourned.
[Prepared statement of Mr. Daniel Alex follows:]
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[Prepared statement of Ms. Michelle Sparck follows:]
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[Prepared statement of Mr. Eni F. H. Faleomavaega follows:]
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[Whereupon, at 3:03, the subcommittee was adjourned.]